THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Criminal Revision Case No.26 of 2004 (Dated : 13-04-2011) Between: B.Munikrishnaiah S/o Balakrishna …Petitioner A n d State of A.P., rep. by its Public Prosecutor, High Court of A.P., and others …Respondents THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Criminal Revision Case No.26 of 2004 ORDER: This revision is directed against the judgment dated 27.10.2003 passed in Special Sessions Case No.14 of 2002 on the file of Special Sessions Judge-cum-IV Additional Sessions Judge, Tirupati, whereby and whereunder, the learned Special Sessions Judge found A-1- S.Ramesh, A-2-Obaiah and A-3-Gopi not guilty for the offences under Sections 3(1)(x) and 3(1)(xi) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (`the Act’) and Sec. 352 IPC and acquitted them accordingly. 2. The prosecution case, in brief, is:- The petitioner is the complainant in S.C.No.14 of 2002. He was working as L.D.C in the office of Assistant Divisional Engineer, A.P.Transco, Tirupathi. He was also Convener and Joint Secretary of State APSEB SCs.&STs Employees Welfare Association, Tirupathi. Pw.2-Buchamma got employment in A.P.Transco, Tirupathi on compassionate grounds. The respondents 1 to 3-accused belong to `1104 Union’. They went on strike on certain issues. Pw.2-Buchamma did not participate in the said strike in spite of the pressure exerted on her by the accused and therefore, the accused bore grudge against her. They used to harass her on some pretext or the other. She informed the said harassment to the complainant, who admonished the accused. 3. On 06.10.98, at about 4 p.m., Pw.2 was sitting on a Bench in the office. A-2 and A-3 asked her to vacate the bench stating that the bench was meant for men. Pw.2 refused to vacate the seat and asked them to sit by her side. Thereupon, A-2 and A-3 grew wild and abused her. In the meanwhile, A-1 came and he too abused Pw.2. Pw.2 went to Simhadri Raju, Superintendent Engineer (Operation), Tirupathi and complained against A-1 to A-3. The Superintendent Engineer (Operation) did not take any action against the accused since the accused were from powerful union `1104. On the next day, Pw.1 gave written complaint to the Supdt. Engineer (Operation) marking a copy to the complainant requesting him to pursue the matter. There being no action on the complaint submitted to the Superintending Engineer (Operation), the complainant sent representation of Pw.2 to the Chief Minister of Andhra Pradesh seeking his immediate intervention. He also marked copy to the Women Protection Cell, Hyderabad. The Women Protection Cell forwarded the complaint of Pw.2 to local police. The S.H.O., East Tirupathi P.S., received the complaint and registered a case in Crime No.351 of 1998. After due investigation, the police filed final report referring the case as false. The police served referred notice on the complainant on 13.5.1999. Thereupon, the complainant presented a private complaint before the II Additional Judicial First Class Magistrate, Tirupathi. 4. The learned Magistrate took the private complaint on file as P.R.C.No.8 of 2000 and committed the same to the Court of Session as the offences under the provisions of the S.C & S.T(POA) Act are exclusively triable by a Special Judge. On committal, the learned Special Judge took the case on file as Special S.C.No.14 of 2002. On appearance of the accused and on hearing the prosecution and the accused, the learned Special Judge framed a charge against A-1 to A- 3 for the offence under Section 3(1)(x) of the Act and a charge for the offence under Section 3(i)(xi) of the Act against A-2 and a charge for the offence under Sec. 352 IPC against A-3, read over and explained the charges to the accused, for which the accused pleaded not guilty and claimed to be tried. 5. To bring home the guilt of the accused for the offences with which they stood charged, the complainant examined four witnesses as Pws.1 to 4 and marked five documents as Exs.P-1 to P-5. On behalf of the accused, Dws.1 and 2 were examined and Exs.D-1 and D-2 were marked. The plea of the accused is that the provisions of S.C & S.T (POA) Act are not applicable as the victim, who has been examined as Pw.2, does not belong to scheduled caste. Their further plea is that the incident said to have taken place on 6.10.98 is not supported by any of the witnesses examined on behalf of the complainant. 6. The learned Special Sessions Judge, on appreciation of the evidence brought on record and on hearing the counsel appearing for the complainant and the accused, found the accused not guilty for the offences with which they stood charged and acquitted them accordingly, by judgment dated 27.10.2003. Hence this criminal revision by the complainant. 7. Heard learned counsel appearing for the complainant and learned counsel appearing for the respondents 2 to 4-accused and learned Additional Public Prosecutor appearing for the 1st respondent- State. 8. Learned counsel appearing for the petitioner-complainant submits that the trial Court has not correctly appreciated the evidence of Pw.2 and thereby, erred in recording acquittal of respondents 2 to 4-acused for the offences under Sections 3(1)(x) and 3(1)(xi) of the Act and Sec.352 IPC. A further submission has been made that the findings recorded by the trial Court that the complainant, who has been examined as Pw.1, and the victim, who has been examined as Pw.2, do not belong to Scheduled Caste is not based on any material, in which case, the said finding is required to be set aside. He would also contend that the evidence of Dw.1 cannot be relied on since he is hostile to the complainant, who has been examined as Pw.1. According to the learned counsel, the sister of Pw.1 has been married to Dw.1 and their marital life ran in rough weather and therefore, Dw.1 is hostile to Pw.1. 9. Learned counsel appearing for the respondents 2 to 4 submits that the evidence of Pw.2 Buchamma is explicit that she does not belong to scheduled caste and she is a Christian. Learned counsel further submits that the victim, who has been examined as Pw.2, married one Bala Sampath Kumar in RCM Church, Kanchikacherla, Nandigama and at the time of her marriage, she changed her name from Buchamma to Mariyakumari. Reliance has been placed on Ex.D- 2 entry in the marriage register maintained by RCM Church for the years 1984-1992. He would further submit that the trial Court appreciated the evidence brought on record in right perspective and recorded acquittal of the respondents 1 to 3-accused for the offences with which they stood charged and therefore, the same is not required to be interfered with in the revision. 10. In an appeal against the acquittal, the appellate Court is circumscribed by the limitation that no interference has to be made with the order unless the approach made by the trial Court to the consideration of evidence is vitiated by some manifest illegality or the conclusion recorded by it is such which could not have been possibly arrived at by any Court acting reasonably and judiciously and is liable and therefore, to be characterised as perverse. It is also well settled that where two views are possible and the view taken by the Court below is possible, appellate Court cannot legally interfere with the order of acquittal even if it is of the opinion that the view taken by the trial Court is erroneous. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal, vide decision of the Supreme Court in V.N.Ratheesh v. State of Kerala[1] 11. The only issue that calls for adjudication in this revision is: Whether the acquittal of respondents 2 to 4 for the offences under Sections 3(1)(x) and 3(1)(xi) of SCs. & STs (POA) Act, and Sec.352 IPC warrants interference of this Court in exercise of powers under Sections 397 and 401 Cr.P.C? 12. Pw.2 is the victim. According to her, on 6.10.1998, at about 4 p.m. while she was sitting on the bench in the office of A.P.Trasco, Tirupathi, A-2 and A-3 asked her to vacate the bench stating that the bench was meant for men, and thereupon, she refused to vacate the seat and asked them to sit by her side. Her refusal to vacate the seat made A-2 and A-3 grew wild and they abused her. She claims that she submitted an oral complaint to the Superintendent Engineer (Operation) against A-1 to A-3.But the complainant neither examined the Supdt. Engineer (Operation) nor produced any material to show that Pw.2 submitted such a complaint. For the first time, Pw.2 lodged complaint before the Superintendent Engineer (Operation) on 7.10.1998, i.e., on the next day of the occurrence. The original complaint has not been marked, but a copy of which has been marked as Ex.P-3. Even in the belatedly submitted complaint, the victim who has been examined as Pw.2 omitted to mention that she was abused naming her caste. The trial Court has taken note of this omission while recording acquittal. For better appreciation, I may refer para (20) of the judgment impugned in the revision, which reads as hereunder:- “I have already hold that there is inordinate delay in lodging the complaint and the complainant failed to explain the said delay. Sine there is inordinate delay in lodging the complaint, the complaint Ex.P.3 has to be scrutinized very carefully before accepting the contents. It is also admitted fact that the original of Ex.P.3 complaint is not filed in the Court. As rightly contended by the counsel for the accused, it is a fit case to draw adverse inference to the effect that if original is produced, it would be against to the case of the complainant. Though Pws. 1 and 2 categorically deposed that A.1 abused Pw.2 as “Mala lanja”, the same is not mentioned in Ex.P.3. Of course, the said words are mentioned in Ex.P-1, which came into existence on 12-10-98, i.e., one week after the alleged incident. Hence, I cannot place any reliance on Ex.P-1 to accept the contention of Pws.1 and 2 that A.1 uttered as “Malla lanja”. On perusal of Ex.P-3, earliest report which came into existence about 10 to 15 hours after the incident, it is clear that exact words alleged to have used by A.1 is not mentioned except boldly stating that the accused abused her in the name of her caste. For this reason also, I have no hesitation to hold that the provisions of Sec.3(1)(x) has no application to the facts of this case”. 13. The core issue is whether Pw.2, who is the victim, belongs to scheduled caste? With regard to the community to which Pw.1 belongs is not relevant for the purpose of this case. The charges framed against the accused reads as hereunder:- “(1)That you Accused No.1 to 3 on 6-10-1998 at about 4 p.m., at the office of the Divisional Engineer, DPE, at Tirupathi, not being members of a Scheduled Caste or a Scheduled Tribe intentionally insulted/or intimated with intent to humiliate S.Buchamma, widow of S.Balasampath Kumar, a member of Scheduled Caste/or a Scheduled Tribe in a place within public view and thereby committed an offence punishable under Sec.3(1)(x) of S.Cs &STs (POA) Act, 1989. (2) That you A.2 on or about the 6th day of October, 1998 at 4 p.m., at the office of Divisional Engineer DPE at Tirupathi, not being a member of Scheduled Caste or Scheduled Tribe kicked chappals of Smt. S.Butchamma who was a woman belonging to Scheduled Caste and sat on her lap with intent to outrage her modesty and thereby committed an offence punishable under S. 3(1)(xi) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 and within my cognizance. (3) That you A.3 on or about the same day, time place and during the course of the same transaction as referred in charge No.1, used criminal force on S.Buchamma by dragging the bench on which she sat and that you thereby committed an offence punishable under S.352 of the Indian Penal Code and within my cognizance.” It is admitted by Pw.2 in cross-examination that her marriage was performed in RCM Church and she changed her name from Buchamma to Mariyakumari. Ex.D-1 is the Marriage Register for the year 1984-1992 maintained by RCM Church, Kanchikacherla, Nandigama, Krishna District and Ex.D-2 is relevant entry at page No.24 of Ex.D-1. The evidence brought on record clearly established that the victim, who has been examined as Pw.2, adopted Christianity and therefore, she is no more a person belonging to scheduled caste. It appears the evidence of Pws.1 and 2 is not consistent and they improved their version before the Court over their 161 Cr.P.C statements. The learned Special Judge has pointed out the improvements in para (21) of the judgment, which reads as hereunder:- “ 21.As rightly contended by the defence counsel, the presence of Pw.1 is also doubtful. Pw.1 in the fag end of page 2 in the chief examination, deposed that “Buchamma cried and questioned the atrocities of the accused and told the same to me”. If really, Pw.1 was physically present, there is no need for Pw.2 Buchamma to inform about the incident to Pw.1. Thus, there is some force in the contention of the learned counsel for the accused that the presence of Pw.1 is also doubtful. That apart, the evidence of Pws.1 and 2 go to show that there is improvement in their evidence from stage to state and this improvements and embezzlement goes to the route of the complainant case. The evidence of Pws.1 and 2 go to show that ever since the date of joining in service by Pw.2, all the accused used to harass her and that they used to paste slip in the seat of Pw.2 with description “ I Love”. But the said fact is not mentioned by Pws.1 and2 in their sworn statements or Ex.P.1 or in Ex.P.3 or even in the private complaint in Ex.P.5. The evidence of Pw.1 go to show that A.2 and A.3 kicked the chappals and those chappals fell in the room. But it is not stated by Pw.2 in her sworn statement or Exs.P.1 and P.3. In the sworn statement, Pw.2 stated that all the accused bore grudge against her from the date of joining. But the sworn statement of Pw.1 goes to show that since Pw.2 did not participate in the strike call given by `1104 union’, all the accused bore grudge. On perusal of the evidence of Pws.1 and 2, they improved their versions from stage to state i.e., from the complaint to sworn statement and sworn statement to evidence. Since there is improvement in the evidence of Pws.1 and 2 from stage to stage and there is no independent testimony to support the interested testimonies of Pws.1 and 2, I cannot place any reliance on the testimonies of Pws.1 and 2. Moreover, if really the incident occurred as stated by Pws.1 and 2, the colleague employees of Pws.1 and 2 would have supported the case of Pws.1 and 2. It is the definite case of Pws.1 and 2 that immediately after the alleged incident, Pws.1 and 2 approached the Superintending Engineer(Operation) and narrated everything. But they failed to examine the said Superintendent Engineer to prove their contention. On the other hand, Pws. 1 and 2 are contending that the said Superintendent Engineer did not support them and that he gave memos to them on some ground or the other and teasing them at the instance of the accused. Being responsible officer, the Superintending Engineer, (Operation) would have taken appropriate action against the accused if really the offence took place as contended by Pws.1 and 2. That apart if really such an incident took place, at least one or two staff members would have supported the case of Pws.1 and 2. After due investigation, regular police referred the case lodged by Pw.1 as false holding that Pw.1 and 2 lodged false complaint against the accused due to union rivalry.” The trial Court appreciated the evidence brought on record in a right perspective and assigned valid reasons for discarding the testimony of Pws. 1 and 2. This is not a fit case to interfere with the Judgment of acquittal in exercise of powers under Section 397 and 401 of the Code of Criminal Procedure. 14. Accordingly, the Criminal Revision Case fails and the same is hereby dismissed. _____________________ B.SESHASAYANA REDDY, J Dt.13-04-2011 RAR THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Criminal Revision Case No.26 of 2004 (Dated : 13-04-2011) [1] 2006 AIR SCW 3568