IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE EIGHTEENTH DAY OF AUGUST TWO THOUSAND AND NINE PRESENT THE HON'BLE SRI JUSTICE K.C. BHANU CRIMINAL APPEAL No. 1083 of 2009 Between: The State of A.P. .... APPELLANT AND Keerthi Pothuraju and others ....RESPONDENTS To present this Memorandum of Criminal Appeal against the order of the acquital in SC.No.28 of 2005 on the file of the Hon'ble Special Judge for trial of offences under SC's & STs(POA) Act, Ongole : Dated : 01st day of August 2007 and prays that his Hon'ble Court may be pleased to set aside the order of acquittal and convict the accused/(Respondents) fro the offence with which they were charged Counsel for the Appellant : Counsel for the Respondent : . The Court made the following : HON’BLE SRI JUSTICE K.C. BHANU CRIMINAL APPEAL No.1083 OF 2009 JUDGMENT: This criminal appeal under section 378 (3) & (1) of the Cr.P.C., 1973, is directed against the Judgment, dated 01.08.2007, passed in S.C.No.28 of 2005, on the file of Special Judge for trial of offences under SCs and STs (POA) Act, Prakasam Division, Ongole, Whereunder and whereby all the accused were found not guilty of the charges under Sections 3(1)(v), 3(1)(x),3(1)(xi) of SCs & STs (PoA) Act, 1989 (for short, “the Act”). 2. The brief facts that are necessary for disposal of the present criminal appeal may be stated as follows: PW.1 is a resident of Stuvartupuram and she is Erukala by caste. PW.2 is the husband of PW.1. PW.1 and her son purchased Ac.0.40 cents of land in Sy.No.73/18 for a consideration of Rs.25,000/- under a registered sale deed, dated 20.05.1995 from PW.4, Bathula Venkateswarlu and Bathula Brahmaiah and since then, they have been in possession and enjoyment of the same. A1 to A3 have got land to an extent of Ac.0.60 cents adjacent to the land of PW.1. PW.1 kept the land vacant as she was intending to construct the house therein. But later A1 to A8 occupied the land. On 01.08.2004 at about 05:00 PM, PW.1 and her husband went to their land and questioned the accused as to why they were present in the land. Then the accused picked up a quarrel with them and abused them in filthy language in the name of their caste. It is also said that while abusing, A1 to A3 beat PW.1 and her husband and also torn the jacket of PW.1. PWs.2,3 and 5 also represented the same. On 10.08.2004 at 11:45 AM, PW.1, de-facto complainant, lodged complaint, Ex.P-1 with PW.6, who took up the investigation, examined witnesses and observed the scene of occurrence and prepared investigation report and also obtained caste certificate of PW.1. After completion of investigation he filed charge sheet for the charges under Sections 3(1)(v), 3(1)(x) and 3(1)(xi) of the Act. 3. When the charges under Section 3(1)(v), 3(1)(x) and 3(1)(xi) of the Act were framed, read over and explained to the accused, they pleaded not guilty and claimed to be tried. 4. To substantiate the charges, the prosecution examined PWs.1 to 8 and got marked Exs.P-1 to P-7. 5. After closure of the prosecution evidence, the accused were examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against them in the evidence of prosecution witnesses. They denied the same. No evidence either oral or documentary was adduced on behalf of the accused. 6. The trial Court after considering the evidence available on record has not placed any reliance on the evidence of prosecution witnesses and accordingly, acquitted the accused. Hence, this appeal by the state. 7. Now the point for consideration is whether the prosecution proved its case against the accused beyond all reasonable doubt of the charges levelled against them? 8. Counsel representing the learned Public Prosecutor contended that the evidence of PWs.1 to 4 would clearly go to show that the accused abused PW.1 and her husband in filthy language in the name of their caste that PW.1 and her husband belong to Erukala caste, that they forcibly occupied the land of PWs. 1 and 2 and dispossessed them from the land, that the evidence of PWs.1 to 4 is very clear that the accused torn the jacket of PW.1 with an intention to outrage her modesty knowing that she belongs to Schedule Tribe and hence, she prays to set aside the order of acquittal. 9. On the other hand, learned counsel appearing for the respondents/accused contended that the trial Court has not placed any reliance on the evidence of PWs. 1 to 4 as their evidence is mutually contrary, that in view of long standing civil disputes between the parties, the possibility of filing this case against the accused cannot be ruled out, that there was a delay of 10 days in lodging the complaint, that after elaborate consideration of evidence on record, the trial Court rightly acquitted the accused and absolutely there are no grounds to interfere with the same. 10. There cannot be any dispute that the accused are presumed to be innocent, unless contrary is proved. That presumption is further strengthened by an order of acquittal. Unless there are substantial or compelling reasons to interfere with the impugned judgment, normally this Court will not interfere with the same. The appellate Court is slow in interfering with the same unless any one of the findings is perverse or the findings are not based upon any evidence or inadmissible evidence was taken into consideration. 11. The case rests upon the evidence of the PWs.1 to 4. The incident is alleged to have taken place on 01.08.2004 at about 05:00 PM in the land claimed by PW.1. PW.1 stated that herself and her son purchased Ac.0.40 cents of land from PW.4. Certified copy of Adangal is filed to show that they are in possession and enjoyment of the property. Similarly, PW.1 also filed registered sale deed, which disclose that PW.1 and her son purchased the land from PW.4, which is marked as Ex.P-2. 12. The land claimed by PW.1 to an extent of Ac.0.40 cents is located in Sy.No.73/18 of Epurupalem Village. It is not in dispute that the total extent of the land covered is Ac.1.26 cents. It is also not in dispute that PW.1 and her son-PW.3, filed a suit for injunction and a petition was filed for appointment of a commissioner to locate the disputed land pertaining to Ex.P2. Therefore, it is clear that they have not clearly described where the land was located. A suit was also filed for recovery of possession. One of the relief claimed in the suit was for possession, but the accused are disputing about the title of the land. The suit filed by the plaintiffs in the year 1996 for possession was dismissed for default and the petition filed to restore the suit was also dismissed. It is not known whether any appeal is filed against the dismissal of the petition to restore the suit. When the plaintiff-PW.1, and her son filed the suit for recovery of possession, it can be said that they were not in possession of the property. The suit was dismissed in the year 2000 for default. But she pleaded that she was dispossessed on 07.02.1996. If such is the case, the contention of PWs. 1 and 2 that they went to the land on 01.08.2004 for the purpose of making construction cannot be accepted. The litigation is pending in the Civil Court with regard to the title and possession of Ac. 0.40 cents of land. Therefore, there were ill feelings between PW.1 and the accused as on the date of incident. Admittedly, when on her own showing she was dispossessed from the land in the year 1996, question of punishing the accused for wrongfully dispossessing PW.1 for the offences under Section 3(1)(v) of the Act cannot be accepted in view of the fact that the competent civil Court has to decide as to who was in possession of the property. PWs.1 and 2 did not solicit an order on merits by adducing evidence. The suit was dismissed for default. They also filed a petition for appointment of a commissioner for localizing the land. Therefore, in such circumstances it cannot be said that they were forcibly dispossessed on 01.08.2004 at 05:00 PM. 13. Coming to the charge under section 3(1)(x) of the Act which provides that who ever intentionally or knowingly insulting or humiliating in the public place within public view a scheduled caste or scheduled tribe member by their caste name, it is an offence. PWs. 1 to 4 have stated that the accused used filthy language and abused PWs.1 and 2 in the name of their caste. The evidence of PW.1 with regard to the abuse in the name of her caste is an improvement. Similarly, PWs.2 to 4 did not state in their evidence about the accused abusing PW.1 in the name of her caste. They have given a different version. 14. Coming to the charge under section 3(1)(xi) of the Act, which provides that when anyone intentionally outraging the modesty of a person belonging to a scheduled caste or scheduled tribe, it is an offence. But the evidence of PW.1 goes to show that the accused caught hold of her tuft and torn her jacket and that fact has not been stated by her husband PW.2. PW.2 has not stated that his wife was subjected to outrage of modesty. 15. Though the alleged incident has taken place on 01.08.2004, admittedly, PW.8 stated that police received the complaint on 10.08.2004 i.e., nearly 10 days after the incident. According to PW.1, as she had no money, she could not go to the police station to lodge a complaint, but PW.2 stated that on the same day, they lodged a complaint to the police. If the evidence of PW.1 is taken into consideration, the earlier version of PW.1 is suppressed by the prosecution. If that is the case, Ex.P1, was brought into existence during the course of investigation, it cannot be used to corroborate the evidence of PW.1. No doubt the delay is not a ground to discredit the testimony of prosecution case, but non-explanation of the delay of this nature, especially when there were civil disputes existing between the parties is fatal to the case of the prosecution and hence, the case of the prosecution has to be viewed with suspicion. The non-explanation of the delay can be taken as one of the circumstances in examining the prosecution case. The First Information Report is a valuable piece of evidence in as much as it gives the true version of the incident. No doubt the First Information Report is not a substantive piece of evidence so as to convict the accused and at the same time, it can be used to corroborate the evidence when the maker was examined in the Court. The parties are fighting for vacant land to an extent of Ac.0.40 cents. Even according to the case of the prosecution, PWs.1 to 3 were dispossessed in the year 1996 and till 2004, they did not raise their little finger. Though they filed a suit for recovery of possession, they have not prosecuted that suit. Therefore, the suit was dismissed for default and the petition to restore the suit was also dismissed by the competent Court. In this background with regard to civil disputes, and further delay of 10 days in lodging the complaint give rise to a suspicion that the prosecution has not come forward with true version of the incident. Perhaps, that is the reason why the evidence adduced by the prosecution is varying from witness to witness and further improvements were made by the witnesses, during the trial when they were made to testify about the incident and those improvements cannot be brushed aside lightly. By taking note of all these aspects, the trial Court rightly acquitted the accused. The order of acquittal needs no interference as there were no substantial or compelling reasons to interfere with the same. Accordingly, the Criminal Appeal is dismissed at the stage of admission confirming the Judgment dated 01.08.2007 in S.C.No.28 of 2005, on the file of Special Judge for trial of offences under SCs and STs (PoA) Act, Prakasam Division, Ongole. _______________ K.C. BHANU, J 18th August, 2009 MD