THE HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.829 of 2007 16-10-2014 BETWEEN:
M.D.Gaffur Khan AND …..Appellant State of A.P., Rep. by Public Prosecutor, High Court of A.P., Hyderabad …..Respondent THIS COURT MADE THE FOLLOWING ORDER:
THE HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.829 of 2007 JUDGMENT:
This Criminal Appeal is filed by the sole accused challenging the judgment dated 21.06.2007 passed by the Special Judge for Trial under SC & ST (POA) Act, Kurnool in SC ST SC No.143 of 2006, whereby the learned Sessions Judge found the appellant guilty for the offence under Section 3(1) (x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act and sentenced him to undergo R.I. for six months and to pay a fine of Rs.1,000/-, in default, to suffer S.I. for two months. Further the appellant is further convicted for the offence under Section 353 IPC and sentenced to suffer R.I. for six months. Both the sentences were directed to run concurrently.
The brief facts of the case of the prosecution are as follows:
On 10.11.2005 while P.W.3-Panchayat Secretary of Devanur village was discharging his duty at Grama Sachivalayam in connection with distribution of compensation to the villagers whose houses were collapsed due to rain fall, at about2.30 p.m., the accused came there and picked up a quarrel with him and questioned him as to why the compensation is not paid to him as his house was also collapsed in the rain. The accused further threatened him with dire consequences and caught hold of his shirt and used criminal force upon him. At that time, P.W.1-Palle Mala Devaraju, who belongs to the scheduled caste intervened and came to the rescue of P.W.3. On that, the accused got angry upon P.W.1 and also P.W.2 for intervening and abused them as “MALA NAA KODAKULLARA” and caught hold shirt of P.W.1 and pushed him aside. When P.W.2 objected, the accused beat him with hands and pushed him aside and threatened them with dire consequences. On 10.11.2005 at 8.00 p.m., P.W.1 approached the police and submitted a report on the basis of which, a case in Crime No.54 of 2005 was registered under Sections 352, 506, 353 IPC and under Section 3(1)(x) of the SC & ST (POA) Act, 1989. After due investigation, charge sheet was laid against the accused for the alleged offences.
In order to bring home the guilt of the accused, prosecution examined P.Ws.1 to 10 and marked Exs.P.1 to P.8. On behalf of defence, no oral or documentary evidence was adduced.
Heard the learned counsel for the appellant and learned Additional Public Prosecutor and perused the material brought on record.
In this case, P.Ws.5 to 9 did not support the case of the prosecution and therefore, they were declared hostile by the prosecution. P.W.1, who lodged the complaint-Ex.P.1, deposed before the Court that on 10.11.2005, he reached the panchayat office by 11.00 a.m. and by that time, distribution of compensation to the victims was started. At about 2.00 p.m., the Mandal Revenue Officer left the village directing the Panchayat Secretary-P.W.3 to distribute the compensation to the remaining victims. At that time the accused caught hold of the shirt of P.W.3 and questioned him as to why the money was not given to him. Then he intervened and questioned the accused as to why he caught hold shirt of P.W.3. On that the accused uttered as “NEEVU YEVADIVIRA MALA LANJAKODAKA”. Further the accused caught hold of left hand of P.W.1 and pulled him. Then P.W.3, village servant, Boya Sanjanna, Shaik Shariff and others came to his rescue.
P.W.2, who is an eyewitness according to the prosecution, deposed that the accused questioned P.W.3 as to why the amount was not paid to him and insisted him to pay the compensation then and there. He caught hold the shirt of P.W.3 and brought him out side the office. Then P.W.1 and village servant went to the rescue of P.W.3, upon which, the accused uttered “NIVEMIRAA TADAVAKI ADDAMU VASTAU RAA MALA LANJA KODAKA”. While saying so, the accused caught hold the shirt of P.W.1. Then himself, P.W.6 and others intervened and rescued P.W.1. The crucial witness P.W.3, who is Panchayat Secretary deposed that on 10.11.2005 at about 2.00 p.m., the Mandal Revenue Officer left the panchayat office directing him to distribute the compensation for the victims. After 2.00 p.m., the accused caught hold of his shift and questioned him for payment of compensation. On that, the accused and P.W.1 shouted against each other and they were abusing each other. Curiously, P.W.3 deposed that he did not clearly hear the abusing words uttered by the accused and P.W.1. P.W.4 is the Mandal Revenue Officer, who deposed that he issued caste certificate Ex.P.2 to P.W.1 certifying that P.W.1 is a member of scheduled caste. P.Ws.5 to 9 did not support the case of the prosecution and they were declared hostile. P.W.10 is the Sub-Inspector of Police who deposed about receipt of Ex.P.1-complaint from P.W.1 and registration of crime and issuance of F.I.R.
After evaluating the entire evidence more particularly, the evidence of P.W.1, the victim and P.Ws.2 & P.W.3, eyewitnesses to the occurrence, the trial Court convicted and sentenced the appellant as aforementioned.
In the earlier statement in Ex.P.1-complaint, P.W.1 stated that the accused abused him as “ORE MALA LANJA KODUKULLARA MI KATHA CHANA AINADI, PRATHIDANTHLO JOKAYAM CHESUKUNTUNNAVU, ORE MALA NA KODUKULLARA MIMMULNU THENTE EVARU DIKKURA”. But when he deposed before the Court as P.W.1, he stated that “NEEVU YEVADIVIRA MALA LANJAKODAKA”. Thus even in the evidence of P.W.1 itself, there is much contradiction with regard to the utterance of words as spoken to by the accused. Whereas P.W.2 deposed that the accused uttered as “NIVEMIRAA TADAVAKI ADDAMU VASTAU RAA MALA LANJA KODAKA”. P.W.3, another eyewitness to the incident, deposed that the accused and P.W.1 shouted against each other, but he did not hear the words uttered by the accused. Thus, in the evidence of prosecution witnesses, there are omissions and contradictions with regard to the utterance of words allegedly spoken to by the accused. Even with regard to the offence under Section 353 IPC, no cogent evidence has been adduced by the prosecution to convict the accused under the said count. Further to clarify the material contradictions, the investigating officer ought to have been examined, but the prosecution failed to examine the investigating officer, which is fatal to its case. Thus, in view of the above material contradictions and mitigating circumstances, it is highly unsafe to convict the accused- appellant for the offences alleged and the convictions and sentences imposed by the trial Court are liable to be set aside.
In the result, the criminal appeal is allowed setting aside the impugned judgment. The convictions and sentences recorded by the trial Court against the appellant-accused are hereby set aside and he is found not guilty of the said offences and acquitted of the charges. The fine amount, if any, paid by the appellant, shall be returned to him.
Miscellaneous Petitions, if any pending shall stand closed.
RAJA ELANGO,J 16.10.2014 Tsr