HON’BLE MR JUSTICE R. KANTHA RAO Criminal Appeal No.1151 OF 2006 DATED: 20.09.2011 BETWEEN: Ganemukula Bapu and others .. Appellants And The State of A.P. .. Respondent HON’BLE MR JUSTICE R. KANTHA RAO Criminal Appeal No.1151 OF 2006 JUDGMENT: This criminal appeal is filed against the judgment dated 30.08.2006 passed by the Special Judge under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act-cum-I Additional Sessions Judge, Adilabad in Special S.C.No.2 of 2004. 2. The appellants/A1 to A3 were tried for the offence under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (For short “the Act”) by the learned Special Judge under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act - cum-I Additional Sessions Judge and at the conclusion of the trial, the appellants were convicted for the said offence and sentenced to undergo simple imprisonment for a period of one year each and to pay fine of Rs.1,000/- each. 3. Feeling aggrieved, the appellants/A1 to A3 preferred the present appeal. 4. It was the case of the prosecution that on 28.11.2002 at about 1.20 PM while PW.3-Mandal Education Officer was receiving applications for the post of cook in the mid-day meal programme for the school children of Supaka Village of Adilabad District, PW.1-Nitturi Sammakka organizer of Sai Dwakra Group of Supaka Village submitted an application. At that time several people were present and appellants/A1 to A3 in the presence of Surpanch PW.2-Venkata Swamy Goud, PW.3- Gattu Rajanna, MPTC and several people stated to the MEO that PW.1 belongs to Madiga community which is a scheduled caste and the children of upper caste people will not eat food cooked by her and therefore, the application submitted by her may not be received. It is said that by the utterance of the said words by the appellants, PW1 felt degraded, humiliated and insulted in public view and she submitted a report to PW.7-C.Vijay Raj, the Sub-Inspector of Police, Kotapally Police Station on 29.11.2002 at 5.00PM. 5. On the strength of her report, PW.7 registered a case in Crime No.51 of 2002 under Section 3(1)(x) of the Act. PW.8, the Sub-Divisional Police Officer, Mancherial Sub-Division, investigated into the offence and obtained caste certificate of PW.1 from the Mandal Revenue Officer and filed the charge sheet. 6. In the course of the trial before the learned Special Judge, the prosecution in order to establish the guilt of the appellants, examined PWs.1 to 8 and marked Exs.P.1 to P.6. On behalf of the appellants, DW-1 was examined and got marked Exs.D1 and D2. The learned Special Judge on a consideration of the entire evidence on record, found the appellants guilty for the offence with which they were charged and convicted them for the said offence and sentenced them to punishment as mentioned above. 7. PW.1, the de facto complainant as could be seen from Ex.P.6, caste certificate issued by the MRO belongs to Madiga community which is a scheduled caste. The appellants belong to non-SC/ST community, but the said fact is not mentioned in Ex.P.1-report lodged with the police. PW.1, the de facto complainant, PW.2, the Surpanch of the village, PW.3, MPTC member of Supaka Village, PW.5, resident of Supaka Village, however stated in their depositions about the appellants stating to PW.4- MEO that the children of upper caste families will not eat the food prepared by PW.1, who belongs to Madiga community. There are discrepancies in the versions of the witnesses as to the actual words uttered by the appellants. Substantially, the utterances are to the effect that if the Madiga people cook food, the upper caste family children may not eat. PW.4-MEO admitted in his evidence that he was present at the time of incident, but stated in his evidence that some persons uttered the above said words and he could not say as to in fact, who uttered those words. This witness was treated hostile by the prosecution for not supporting the prosecution case in its entirety. 8. The learned trial Court upon considering the entire evidence on record, arrived at the conclusion that the prosecution proved the offence under Section 3(1)(x) of the Act against the appellants and accordingly convicted them for the said offence and sentenced them to punishment as mentioned above. 9. Two points would arise for consideration in the present appeal: 1. Whether from the facts and evidence on record, the prosecution was able to establish that the appellants/A1 to A3 uttered the above said words? 2. If it is believed that the appellants uttered the above said words, whether the words attract the offence under Section 3(1)(x) of the Act? 10. POINT No.1: PW.4-MEO to whom the above said words allegedly uttered by the appellants did not state that the appellants uttered those words. He only stated that he heard those words uttered by some persons. The prosecution version is that those words were stated by the appellants/A1 to A3 to PW.4, while PW.1 was submitting the application to him. If that is so, PW.4 would have certainly identified the appellants as the persons uttering those words. Pw.4 did not state that the appellants uttered those words. 11. In this context, the report given by PW.4-MEO to the Sub-Divisional Police Officer, Mancherial becomes crucial. It is the version of the prosecution that PW.4 gave a separate report to the Sub- Divisional Police Officer regarding the incident. The said report is marked as Ex.P.3. In the said report PW.4-MEO stated as follows: “When I received an application from SC Mahila Dwacra group all the villagers of Nandarampalli Village raised an objection stating that in case of Madiga caste woman prepare and serve the meals their children/kids will not eat the same. On hearing the above versions I myself and Surpanch stated that we would eat the food cooked by people of SC. Since several villagers assembled there I do not know the names of the persons.” 12. From the report Ex.P.3 given by PW.4-MEO to the Sub-Divisional Police Officer, Mancherial, it is obvious that several persons who gathered at the Gram Panchayat Office, raised objections that if food is cooked by scheduled caste woman, their children will not eat. Same is the version given by PW.4 before the Court also. Therefore, it cannot be said that Pw.4 gave any false evidence to save the appellants. His version is specific on the aspect that several people, who gathered at the Gram Panchayat Office objected for cooking food of mid-day meal by scheduled caste persons. 13. Further in this case, the delay in lodging the first information report assumes great significance, because it is borne out from the evidence that the appellants and PW.2-Surpanch and PW.3 MPTC belonged to two different political groups and there is rivalry between the two groups. It is also borne out from the evidence that the wife of A1 also submitted an application to the Mandal Educational Officer for the appointment of cook in the mid-day meal programme. The defence version is that due to political rivalry, the appellants were implicated by the Surpanch and MPTC in the present case and false evidence was given against them. The incident admittedly occurred on 28.11.2002 at 1.20 PM. The report was lodged by PW.1 on 29.11.2002 at 5.00 PM. Thus, there is about 28 hours delay in lodging the first information report. In view of two rival political groups in the village and the Surpanch and MPTC belonging to the rival group of the appellants, the evidence has to be scrutinized with great care and caution and the delay if not properly explained, is certainly fatal to the case of the prosecution. The police station is at a distance of 20 km from the village in which the incident allegedly occurred and there is bus facility. Therefore, the delay of 28 hours in lodging the first information report can certainly said to be fatal as the same was also not properly explained by the prosecution, more particularly, in view of the evidence of PW.4-MEO that several persons in the mob uttered the words touching the caste of PW.1. It is therefore, quite unsafe to base a conviction solely relying on the evidence of PWs. 1, 2, 3 and 5 belonging to the rival group of the appellants. The learned trial Court in my view ought not to have placed reliance on the evidence of the said witnesses. 14. POINT No.2: The next question requires consideration is even if the entire version of the prosecution is believed, whether it would attract the offence under Section 3(1)(x) of the Act. Section 3(1)(x) of the Act reads as follows: Whoever, not being a member of a Scheduled Caste or a Scheduled for offences of Tribe - intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view; Even according to the prosecution, the appellants have not uttered the words to PW.1. The utterances were in the nature of objection to PW.4- MEO. It is settled law that merely because a person is addressed by his caste without any intention to insult or humiliate him, the utterances do not constitute an offence under Section 3(1)(x) of the Act. The mens ria is essential element of the offence under Section 3(1)(x) of the Act and the requisite mense ria is intention. 15. Therefore, unless it is establishing that the words uttered in the name of the caste or with an intention to insult or humiliate a person, In a place with in public view, the offence under Section 3(1)(x) of the Act cannot be said to be made out. 16. In GORIGE PENTAIAH v STATE OF ANDHRA PRADESH AND OTHERS[1] the Supreme Court held as follows: “According to the basic ingredients of Section 3(1)(x) of the Act, the complainant ought to have alleged that the appellant-accused was not a member of the Scheduled Caste or a Scheduled Tribe and he was intentionally insulted or intimidated by the accused with intent to humiliate in a place within public view… When the basic ingredients of the offence are missing in the complaint, then permitting such a complaint to continue and to compel the appellant to face the rigmarole of the criminal trial would be totally unjustified leading to abuse of process of law.” 17. According to the appellants, in the present case even the entire allegation leveled against them is believed, the words allegedly uttered by them do not constitute the offence under Section 3(1)(x) of the Act. The evidence above referred does not indicate that the appellants while raising objection before PW.4 for cooking food by scheduled caste woman had any requisite, mens rea of intentionally insulting PW.1 in the name of her caste to humiliate her. Moreover, in view of the evidence of PW.4 some people in the mob raised the objection. On account of the delay in lodging the F.I.R there is every possibility of the appellants being fixed by the persons of the opposite group as the persons made the utterances taking advantage of the situation. In these circumstances it is quite unsafe to convict the appellants basing on the evidence of PWs.1, 2, 3 and 5. 18. The learned trial Court, therefore, misdirected itself in appreciating the evidence on record and also had not properly understood the ingredients of Section 3(1)(x) of the Act and had fallen in to error in convicting the appellants for the said offence. Therefore, the conviction and sentence passed against the appellants are liable to be set aside. 19. Consequently, the criminal appeal is allowed setting aside the judgment dated 30.08.2006 passed by the Special Judge under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act- cum-I Additional Sessions Judge, Adilabad in Special S.C.No.2 of 2004. The appellants/A1 to A3 are set at liberty. The fine amount, if any, paid by the appellants shall be refunded to them. __________________ Date: 20.09.2011 R. KANTHA RAO, J Note: L.R copy to be marked. B/O Kvrm HON’BLE MR JUSTICE R. KANTHA RAO Criminal Appeal No.1151 OF 2006 DATE: 20.09.2011 [1] (2008) 12 SCC 531