HONOURABLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL NO.2274 OF 2004 Dated 11-03-2011 Between: Chakali Mallikarjuna and another ……..Appellants And: State of A.P., rep. by PP., High Court of A.P. ………Respondent HONOURABLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL NO.2274 OF 2004 JUDGMENT: This appeal arises out of the conviction and sentence passed by the Special Sessions Judge, Kurnool in SC ST Sessions Case No.28 of 2003 dated 13.10.2004. The appellants herein were prosecuted for the offences under Sections 452, 323, 506 and read with 34 of IPC and Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities Act) (for short, the Act) alleging that on 4.7.2002 at about 7.00 a.m at Chigurumanpet, Dhone, A.1 and A.2 trespassed into the house of P.W.1 with intent to beat him. A.1 beat P.W.1 on his cheek, whereas A.2 pushed the wife of P.W.1 aside, when she came to rescue her husband. A.1 and A.2 abused both P.W.1 and his wife by touching their caste name. This occurred due to ill-feelings between A.1 and P.W.1 for a due payment of Rs.200/- by the P.W.1 to A.1 in ‘Mutka’ transaction. The learned Special Judge has framed the charges under Sections 3(1)(x) of the Act and Sections 506, 323, 452 read with Section 34 IPC against the A.1 and A.2 and both of them have pleaded not guilty for the said charges. In order to establish the charges, the prosecution has examined 8 witnesses and got marked Exs.P.1 to P.4 on their behalf. No defence witnesses were examined on behalf of the accused. The learned Special Judge after taking into consideration of both oral and documentary evidence, found both the accused guilty for the offence under Section 3(1)(x) of the Act and convicted and sentenced them to under go simple imprisonment for a period of 6 months and to pay a fine of Rs.1,000/- in default to suffer simple imprisonment for 3 months each and also convicted and sentenced A.1 to pay a fine of Rs.2,000/- in default to undergo simple imprisonment for a period of 3 months for the offence under Section 323 IPC and A.1 and A.2 further convicted to pay a fine of Rs.1,000/- each under Section 452 IPC in default to suffer simple imprisonment for 3 months each. Aggrieved by the said conviction and sentence, the present appeal is filed. Now the point that arises for consideration is whether the prosecution could able to establish the charges under Section 3(1)(x) of the Act against A.1 and A.2 and Section 323 IPC against A.1 and Section 452 IPC against A.1 and A.2 beyond reasonable doubt? The learned counsel for the appellants pleaded that the Investigating Officer has no authorization to investigate into the S.C.S.T case and the Investigating Officer has not collected the caste certificates of P.Ws.1 and 2 to show that they belong to Schedule caste or Schedule Tribe and as such the prosecution is liable to be vitiated on that ground. The learned counsel for the appellants has further pleaded that there are disputes between the first Investigating Officer and A.1 prior to the incident and in view of the previous enmity, the P.W.5 got foisted the case against the accused taking the assistance of P.Ws.1 and 2 and accordingly all the witnesses have spoken verbatim the same facts as alleged in the complaint and as such the accused are entitled to the benefit of doubt. On behalf of the Public Prosecutor, it is pleaded that the Investigating Officer P.W.6 was given General Authorization by the Superintendent of Police and it is sufficient for him to investigate into the S.C. S.T case. He further pleaded that during the course of cross- examination, the appellants have not disputed about the caste of the P.Ws.1 and 2 and as such there is no need to produce the caste certificate of P.Ws.1 and 2. He further pleaded that since they were present at the time of incident, all of them have spoken what has happened before them. As such the learned Special Judge has rightly convicted the accused for the above said charges. According to the prosecution on 4.7.2002 at 7.00 a.m, the accused trespassed into the house of P.Ws.1 and A.1 beat the P.W.1 on his cheek and A.2 pushed the P.W.2 aside when she came rescue in P.W.1 and both of them abused P.Ws.1 and 2 by their caste name. The charge sheet does not disclose that P.W.6 was authorized to investigate into the S.C and S.T case. The learned counsel for the appellants has further pleaded that under Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities Rules, 1997, the Investigation shall be by a Police Officer not below the rank of the Superintendent of Police and the Investigation Officer shall be appointed by the Government/Director General of Police/Superintendent of Police by taking into account of past experience, sense of ability and justice to pursue the implications of the case and investigate it in right lines within the shortest possible time. In the present case, P.W.6 is the Investigating Officer and according to him he took up the investigation in this case. In the cross- examination he stated that there is no specific authorization to investigate into this case. According to him General Authorization was given by the Superintendent of Police, Kurnool to investigate into the SC ST cases. Admittedly, the said general authorization was not filed before the lower court. Therefore, there is no material on record to show that the P.W.6 was authorized to investigate into the SC ST cases. The leaned counsel for the appellants has pleaded that when the Investigating Officer is not authorized under Rule 7 of the said Rules, the trial conducted by the lower court is vitiated and in support of his contention he relied upon a decision rendered in The Public Prosecutor, High Court of A.P., Hyderabad v. Kusuma Mallaiah and others[1] wherein the single Judge of this Court has held: “That non compliance of Rule 7 of the SC ST (PAO) Rules, 1995 appointing the investigating officer to investigate into the SC ST case, the trial is vitiated.” In the present case as observed above, there is no material on record to show that the P.W.6 was authorized to investigate into the said case under the Act. The next contention of the learned counsel for the appellants is that the Investigating Officer has not produced any caste certificate of P.Ws.1 and 2 to establish that they belong to Schedule Caste or Schedule Tribe. On behalf of the Public Prosecutor, it is pleaded that as the accused has not disputed about the caste of the P.Ws.1 and 2 by putting any suggestions in the cross-examination, there is no need to produce the caste certificate as they have admitted about the caste of P.Ws.1 and 2. The charge sheet does not disclose to which caste, the P.Ws.1 and 2 belong to. P.Ws.1 and 2 have stated that they belong to ‘Yerukula’ caste and they were abused by their caste by A.1 and A.2. The Investigating Officer P.W.6 in the cross-examination admitted that he has not filed any certificate to show that the P.Ws.1 and 2 belong to any community or caste. Therefore, there is no material on record to show that the P.Ws.1 and 2 belong to the Schedule Castes or Schedule Tribes. Therefore, the prosecution has failed to establish that the P.Ws.1 and 2 belong to SC and ST community. Therefore, in view of the fact that the P.W.6 has not produced any authorization to investigate into the SC ST case and P.W.1 and 2 belong to SC or ST community, the said trail against the accused is vitiated. With regard to other charges i.e., under Sections 323 and 452 IPC, P.W.1/complainant has stated that the incident has taken place about two years back at his house. On the date of incident at about 7.00 a.m, himself and his wife were present at his house, A.1 and A.2 came to his house and A.1 asked him to clear the debt of Rs.200/- which was incurred by him from him. He gave reply that he do not have an amount of Rs.200/- and requested him to pay the amount later. Then A.1 caught hold of his shirt and gave slap on his cheek and abused him by touching his caste. The said version of P.W.1 was supported by P.W.2. But in the cross-examination, it is established that the said amount is due in connection with ‘Makta’ game played by P.W.1 and P.Ws.3 and 4 were said to be the eye witnesses to the said incident have also supported the version of P.Ws.1 and 2 by verbatim. According to them, the accused No.1 demanded P.W.1 for payment of Rs.200/- which fell due to him in connection with ‘Makta’ game and when P.W.1 refused to pay the amount, A.1 slapped him and when P.W.2 came to his rescue, A.2 pushed her aside. The appellants’ counsel has pleaded that the accused was falsely implicated in this case by taking the assistance of P.Ws.1 to 4 by P.W.5 in view of the previous disputes between him and the A.1. The learned counsel for the appellants pleaded that the complaint was drafted by P.W.5 himself but not by the person as stated by P.W.1. P.W.1 has stated that he went to the police station and gave a written complaint. Ex.P.1 is the report given to the police. In the cross-examination, he has stated that he is a signatory. He can read but he cannot write. One Ravi is the scribe of Ex.P.1 report. P.W.5 M. Bhakthavastalam, Sub Inspector of Police has stated that P.Ws.1 and 2 came to the police station and submitted a written complaint and basing on the said complaint he registered a case in Crime No.124 of 2002 under Sections 452, 323, 506 read with Section 34 IPC and issued the FIR. Ex.P.2 is the FIR. S.D.P.O, Dhone investigated the case and he assisted the C.I. Dhone in arresting the accused Nos.1 and 2 and 9 others at the residence of A.1 and A.2 while they were running ‘Makta’ under cover of Panchanama. Basing on the Panchanama, C.I. Dhone registered a case against A.1 and A.2 and 9 others in Crime No.125 of 2002 under Section 3 and 4 of A.P. Gaming Act. In this case, as per the instructions of S.D.P.O., Dhone, he sent the report to J.M.F.C. Dhone against A.1 and A.2. In the cross-examination, he denied that A.1 was having ill feelings against him. He denied that A.1 filed a criminal case against him in Banganapalli court and it was ended as acquittal as C.C.No.110 of 1997 against the then S.I of Dhone. He denied that he sent for P.W.1 and got the report Ex.P.1 drafted and put up a case against the accused. He also denied that because Yerukala involved in so many cases, he took opportunity to file a false case against the accused. Investigating Officer P.W.6 has stated that he has examined P.Ws.1 to 3 and recorded their statements and visited the scene of offence on 4.7.2002 and prepared the rough sketch of the scene of offence. In the cross-examination he has stated that when he examined P.Ws. 1 to 3, Dhone S.I was also present. He cannot say there was any instigation by S. of Police, Dhone to P.Ws.1 to 3 when he was examined. He admitted that there were cases between A.1 and S.I of Police, Dhone earlier to this case. Therefore, from the admissions of P.W.6, it is evident that the cases are pending between A.1 and S.I of Police, Dhone prior to this case and the said S.I of Police has brought the P.Ws.1 to 3 to him for recording their statement and he has also submitted that the S.I of Police has prevailed by him during the course of investigation of this case. Therefore, it is evident that S.I of Police, P.W.5 was taken special interest in this case in getting the witnesses and recording their statements and got investigated into this case by P.W.6 in view of the disputes between him and A.1 prior to this incident. Special interest shown by P.W.5 is also seen as the manner in which the investigation was conducted in this case. The complaint was filed on 4.7.2002 at 8.00 a.m when the said alleged incident had taken place at 7.00 a.m on that day and immediately on the same day, the P.W.6 has recorded statement of P.Ws.1 to 3 and he visited the scene of offence and prepared a rough sketch of the scene of offence on the same day and P.W.5 also registered the case on the same day and accompanied the C.I, Dhone and staff and pahcnayatdars for arresting the A.1 and A.2 and 9 others while they running ‘Makta’ under the cover of Panchanama and he also sent the report to JFCM, Dhone against A.1 and A.2. Therefore, from the above evidence, it is probable that in view of the disputes between A.1 and P.W.5, he has prevailed upon the P.W.6 and got filed the case against the A.1 and A.2. With regard to occurrence of the incident as admitted by all the witnesses, P.W.1 has gone to the house of P.W.1 and demanded for payment of Rs.200/- due to him and P.W.1 has refused to pay the said amount stating that he has no money and thereupon the incident has taken place. What all the witnesses have spoken, the eye witnesses P.Ws.4 and 5 have also spoken same thing even though they came to the house of P.W.1 after hearing the ‘galata’. Therefore, the evidence with regard to A.1 beating P.W.1 and pushing P.W.2 cannot be believed More over as the defence set out by the accused is probable, I hold that it is not safe to convict the accused even for the offence under Sections 323 and 452 IPC. The learned Special Judge has not taken into consideration of the defence put forth by the accused and simply relied upon the evidence of P.Ws.1 to 4 and found the accused guilty for the said charges. Thus, the said finding if liable to be set aside. In the result, the criminal appeal is allowed and the conviction and sentence passed by the Special Sessions Judge, Kurnool in SC ST Sessions Case No.28 of 2003 dated 13.10.2004 is hereby set aside and both the accused are acquitted. ______________________ P.DURGA PRASAD,J. Date:11.03.2011. Gk. HONOURABLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL NO.2274 OF 2004 Dated 11.03.2011 Gk. [1] 2005 Crl.L.J.1162