THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Criminal Appeal No.1013 of 2004 Dated :17-02-2010 Between: Gangineni Punnaiah S/o China Narsaiah Rompicherla Mandal, Guntur District …Appellant/ accused A n d State of A.P rep. by Public Prosecutor, High Court of A.P., Hyderabad …Respondent/ Complainant THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Criminal Appeal No.1013 of 2004 JUDGMENT: This Criminal Appeal is directed against the judgment dated 12.5.2004 passed in S.C.No.65/S/2003 on the file of the Special Sessions Judge, Guntur, whereby and whereunder, the learned Special Sessions Judge found the appellant-accused-Gangineni Punnaih guilty for the offences under Sections 3(1)(x) of SCs and STs (P.O.A) Act, 1989 and Section 323 of IPC, convicted him accordingly and sentenced him to suffer simple imprisonment for 9 months and pay a fine of Rs.1,500/- in default to suffer simple imprisonment for one month for the offence under Section 3(1)(x) of S.Cs and STs (POA) Act, and pay a fine of Rs.500/- in default to suffer simple imprisonment for one week for the offence under Section 323 of IPC. 2. The prosecution version in a nutshell is as follows:- Pw-1 Koyyalamudi Vijayaprakasa Rao is resident of Veeravatnam village, Rompicherla Mandal and he belongs to Madiga, which is a scheduled caste. Pw-4 Manukonda Sambi Reddy is owner of a tractor-trailer. He engaged Pw-1 as driver of the tractor-trailer. On 22.12.2001, when Pw-1 was driving the tractor-trailer with a load of milk cans. Accused-Gangineni Punnaih stopped the tractor at Subbaiahpalem centre and asked him to carry pesticide bags to his field. Pw-1 replied him that he would carry pesticide bags either in the evening or on the next day as he was getting late to supply milk to Dairy. On 23.12.2001 at about 9 a.m., Pw-1 was driving the tractor- trailer with a load of milk cans from Alavala and on reaching Subbaiahpalem centre, the accused asked him to carry pesticide bags, whereupon, Pw-1 stated to him that he was getting late to take the milk cans to dairy, and thereby he expressed his inability to oblige him. Then the accused abused Pw-1 saying “NIYYAMMANI DENGA, MIYYAKKANI DENGA, NIYYAMMA NEE MADIGA KUTHANI DENGA, NAA MATAKI YEDURU CHEPUTHAVA NIYYAMMA MOGUDIDA EE TRACTOR”. While so abusing, the accused caught hold of his shirt, pushed him down from the tractor, kicked him and fisted him indiscriminately. The accused further went to the adjacent house and brought a stick and beat him with the stick. When Pw-1 questioned the accused for his beating, the accused asked Pw-1 to report to whomsoever he would like. Many people gathered and questioned the accused as to why he was beating Pw-1. The accused did not respond to them. Pw-1 returned home and informed the incident to his mother and from there, he along with his mother and Bayyavarapu Ram Babu-Pw-2, who was the cleaner on the tractor, went to the police station and presented Ex.P-1 report. PW-5 S.Sambasiva Rao, Assistant Sub Inspector of Police, Rompicherla, received Ex.P-1 report on 30.12.2001 at 8 am and registered a case in Crime No.104 of 2001 for the offences under Sections 323 IPC and Section 3(i)(x) of S.Cs and STs (P.O.A) Act, 1989 and issued Ex.P-2- F.I.R. Pw-6-M.Surya Prakasa Rao, Sub Divisional Police Officer, Narasaraopet, took up investigation, examined Pw-1-K.Vijaya Prakasa Rao, Pw-2-Bayyavarapu Ram Babu, Pw-3-Gollapudi Manga Rao and Pw-4 Manukonda Sambi Reddy and recorded their statements under Section 161 Cr.P.C. He secured the caste certificate of Pw-1, which has been exhibited as Ex.P-3, and arrested the accused on 26.2.2002 and sent him for remand. After completing investigation, he laid a charge sheet in the Court of II Additional Munsif Magistrate, Narasaraopet. 3. The learned Magistrate took the charge sheet on file as P.R.C.17 of 2003 and committed the case to the Special Sessions Judge, Guntur. The learned Special Sessions Judge took the charge sheet on file as S.C.No.65/S/2003. On appearance of the accused and on hearing the prosecution and the accused, the learned Special Sessions Judge framed charges under Section 3(1)(x) of the S.Cs and STs (POA) Act and Section 323 IPC, read over and explained the charges to the accused, for which the accused pleaded not guilty and claimed to be tried. 4. To bring home the guilt of the accused for the offences with which he stood charged, prosecution examined six witnesses as Pws. 1 to 6 and marked three documents as Exs.P-1 to P-3. The plea of the accused is that the case has been foisted against him due to enmity between Subba Reddy and Sambi Reddy and Malapati Kondalu. His further plea is that he along with Jasti Srinivasa Rao, who is an accused in the murder case of Gollapudi Kotayya, the maternal uncle of Pw-1, is cultivating the lands of Srinivasa Rao jointly and he has been falsely implicated in this case so as to see that the lands of Srinivasa Rao remain fallow. The learned Special Sessions Judge, on considering the evidence brought on record and on hearing the prosecution and the accused, found the accused guilty for the offence under Sections 3(1)(x) of SCs and STs (POA) Act and Section 323 IPC, convicted him accordingly and sentenced him as stated supra, by judgment dated 12.5.2004. Hence, this criminal appeal. 5. Heard learned counsel appearing for the appellant-accused and learned Additional Public Prosecutor appearing for the respondent- State. 6. Learned counsel appearing for the appellant-accused submits that there is abnormal delay in filing the report by Pw-1 before the police and the delay has not been properly explained by the prosecution and in which case, the very report not only gets bereft of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. Learned counsel would also submit that the presence of Pw-3 has not been spoken by Pw-1 at the time of the incident either in Ex.P-1 report or before the police or even before the Court in his deposition and therefore, no credence could be given to the testimony of Pw-3. 7. Coming to the evidence of Pw-2, learned counsel would contend that Pw-4 who is the owner of the tractor did not speak of his engaging Pw-2 as Cleaner and in which case his presence at the time of the incident is highly doubtful. The last submission of the learned counsel is that Pws.1 to 3 are interested witnesses, and therefore, no credence can be given to their testimony, more particularly in view of abnormal delay of about 8 days in presenting report before the police. In support of his submissions, reliance has been placed on the judgment of Supreme Court in Dilawar Singh Vs. State of Delhi[1], wherein it has been held that in criminal trial one of the cardinal principles for the Court is to look for plausible explanation for the delay in lodging the report. Delay sometimes affords opportunity to the complainant to make deliberation upon the complaint and to make embellishment or even make fabrications. Delay defeats the chance of the unsoiled and untarnished version of the case to be presented before the Court at the earliest instance. That is why if there is delay in either coming before the police or before the Court, the courts always view the allegations with suspicion and look for satisfactory explanation. If no such satisfaction is formed, the delay is treated as fatal to the prosecution case. 8. Learned Additional Public Prosecutor submits that the evidence of Pws. 1 to 3 is consistent to the fact that they all went to the police station on the same day of incident and presented Ex.P-1-report before the S.H.O and if there is any delay on the part of the S.H.O in registering the case, it would not effect the testimony of Pws. 1 to 3. A further submission has been made that Pws.2 and 3 being the Cleaner and passenger respectively in the tractor are natural witnesses since this incident occurred while Pw-1 was driving the tractor with a load of milk cans and the evidence of Pws. 1 to 3 is cogent and consistent and in which case, the trial Court is justified in recording the conviction of the appellant-accused for the offences under Sections 3(1)(x) of S.Cs and STs (POA) Act and Section 323 IPC and the same is not required to be interfered in this appeal. 9. The point that arises for consideration in this appeal is : Whether the conviction and sentence of the appellant- accused for the offences under Sections 3(1)(x) of SCs and STs (POA) Act and Section 323 IPC is legal and proper and the same is sustainable? 10. Before considering the trust worthiness of Pws.1 to 3, the situation existed in Rompicherla mandal as on the date of incident needs to be noted. Veeravatnam, Subbaiahpalem and Romplicherla come under Rompicherla Mandal. The distance between Subbaiahpalem and Rompicherla is 2 Kms. Pws. 1 to 3 are residents of Veeravatnam whereas the accused is resident of Subbaiahpalem. Four months prior to the date of pertinent incident, Gollapudi Kotiah, who is the maternal uncle of Pw-1, was murdered. Jasti Srinivasarao is the brother-in-law of Pw.1. Pw.2 admits the relationship of the appellant-accused with Jasti Srinivasarao in cross-examination. For better appreciation, I may refer the crossexamination of Pw-2 in his own words. He states as hereunder:- “ I do not know the father’s name of the accused. The accused was staying in the house of his father-in-law Gopaiah at Veeravatnam village. Jasti Sreenu is the son of said Gopaiah. It is true that Jasti Sreenu is an accused in the murder case of Kotaiah. Jasti Sreenu had landed property and cultivation.”. 11. Pw.4 admits in cross-examination that the accused and Jasti Srinivasa Rao are jointly cultivating the lands. Pw-2 also admits in cross examination that the accused and Jasti Srinivasarao cultivate the lands jointly. Pw.2 is brother-in-law of Pw.1 by courtesy. Pw.3 married the cousin sister of Pw-1. Pw-2 made a categorical statement in the cross examination that ever since the murder of Kotaiah, there were groups in the village. It can safely be inferred from the situation, which existed in the village as on the date of incident, that Pws.1 to 3 are interested and partisan witnesses. There is any amount of hostility between Pws.1 to 3 on one hand and the accused on the other hand because of murder of Kotaiah, who is the maternal uncle of Pw-1. Keeping in view the hostility between the prosecution witnesses (Pws. 1 to 3) and the accused, I may now proceed to evaluate the evidence of the witnesses examined on behalf of the prosecution. 12. POINT: Pw-1 is the victim in the hands of the appellant- accused. Pw-4 is the owner of the tractor-cum-trailer. He engaged Pw-1 as driver of the tractor-trailer. According to Pw-1, on 22.12.2001, while he was driving the tractor-trailer with a load of milk cans and on reaching Subbaiahpalem centre, the appellant-accused asked him to carry pesticide bags to his field and thereupon, he reported that he would carry pesticide bags either on the evening or on the next day as he was getting late to supply milk to dairy on that day. Then the accused abused him saying “NIYYAMMANI DENGA, MIYYAKKANI DENGA, NIYYAMMA NEE MADIGA KUTHANI DENGA, NAA MATAKI YEDURU CHEPUTHAVA NIYYAMMA MOGUDIDA EE TRACTOR”. Pws 2 and 3 did not speak of the incident occurred on 22.12.2001. Even Pw-1 did not mention of the accused hurling abuses against him on 22.12.2001. Had the appellant-accused hurled abuses on 22.12.2001 against Pw-1, the appellant-accused ought not have demanded Pw-1 to carry pesticides to his field on the following day. Therefore, the incident of hurling of abuses by the appellant-accused on 22.12.2001 against the appellant is highly doubtful. 13. Coming to the incident stated to have occurred on 22.12.2001, it is the version of Pws 2 and 3 that they traveled in the tractor-trailer driven by Pw-1 as cleaner and passenger respectively. Pw-4 is the owner of the tractor. He did not speak about his engaging Pw-2 as Cleaner of the tractor. For better appreciation, I may refer the evidence of Pw-4 in his own words. He stated in chief examination as hereunder:- “ I am resident of Veeravatnam village of Rompicherla Mandal and an agriculturist and I own a tractor. I know Pws. 1 to 3. Pw-1 is a Christian by community. I know the accused who is kamma by caste. Pw-1 drove the tractor for two days and there is no cleaner on it. About more than one year back, Pw.1 drove the tractor for carrying milk to the Dairy. Our tractor is used to carry milk to Dairy and that Pw.1 informed to me that he was beaten. I am informed that the accused who is now present before the Court beat him. I do not know the name of the accused. Pw.1 asked to question as to the act of accused. Then I answered that I will enquire. I am not examined by police”. It is crystal clear from the evidence of Pw.4 that he did not engage any one as cleaner on the tractor owned by him. Such is the evidence of Pw-4, the version of Pw.2 that he worked as a cleaner on the tractor owned by Pw-4 does not inspire confidence. 14. It is the defence of the appellant-accused that he has been cultivating the lands of Srinivas Rao and to see that the lands of Srinivas Rao remain fallow, a false case has been foisted against him. At his juncture, it is to be noted that Pw-2 is no other than the brother- in-law of Pw-1 by courtesy. This fact has been admitted by Pw-1 in cross examination. Pw-3 is the grandson of Kotaiah, who is stated to have been murdered in the village, in respect of which Srinivasrao has been arrayed as one of the accused in the said murder case. It can be said without any fear of contradiction that Pws. 1 to 3 are interested witnesses. Therefore, their evidence is required to be scanned very scrupulously. 15. Pw-4, who is owner of the tractor-cum-trailer, did not speak of his engaging Pw-2 as cleaner. Therefore, his presence at the time of the incident becomes doubtful. Pw-1, who is the victim, himself does not speak of the presence of Pw-3 either in his report, which has been exhibited as Ex.P-1 or in his evidence before the Court. These circumstances compel me to conclude that Pws.2 and 3 are planted witnesses to support the version of Pw-1 and therefore, their evidence is liable to be excluded from consideration. 16. Pws 2 and 3 are related to Pw-1 in some way or the other. They did not claim to have gone in rescue of Pw-1 when he was receiving blows in the hands of the appellant-accused. Their conduct of remaining silent spectators suggest that they are planted witnesses. So, what remains is the evidence of Pw-1 alone. 17. First Information Report in a criminal case is extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the time of trial. The importance of the report can hardly be over estimated from the stand point of the accused. The object of insisting upon prompt lodging of the report with the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of actual culprits and the part played by them as well as the names of witnesses present at the scene of occurrence. Delay in lodging the first information report quite often results in embellishment, which is a creature of afterthought. On account of delay, the report not only gets bereft of advantage of spontaneity, but also danger creeps in of the introduction of coloured version exaggerated account or concocted story as a result of deliberation and consultation. It is, therefore essential that the delay in lodging the F.I.R should be satisfactorily explained. 18. It is well settled that when the evidence of sole witness (Pw-1) is shrouded with suspicion, prudence demands corroboration from any other witness. 19. The incident occurred on 22.12.21001 and whereas Pw-5 received the report from Pw-1 regarding the said incident on 30.12.2001 at 8 am and a case in Crime No.104 of 2001 for the offences under Section 3(1)(x) of SCs and STs (POA) Act and Section 323 IPC came to be registered. There is delay of nearly eight days in presenting the report. In the printed F.I.R, which has been exhibited as Ex.P-2 in column No.8, reasons for delay is stated as “due to fear of the upper caste people”. It is not the version of Pw-1 before the Court that he could not present the report immediately due to fear. It is the version of Pw-1 before the Court that he went to the police station immediately on 23.12.2001 and presented report. His testimony with regard to filing report on the date of incident itself is falsified by the material placed on record. As I stated earlier, Pw-1 is an interested witness. It is well settled that the testimony of interested witness is required to be scrutinized very carefully before being accepted. The trial Court having noticed the fact of delay in presenting report before the police proceeded to ignore the same on the ground that the delay in registering the case is attributable to the police and not to Pw-1. 20. The evidence of PW.1 suffers from serious infirmities and inconsistencies and therefore, it is not desirable to place implicit reliance on his testimony. There is no other convincing evidence to corroborate the testimony of PW.1. In these circumstances, benefit of doubt should go to the appellant/accused. 21. Accordingly, the Criminal Appeal is allowed setting aside the conviction and sentence of the appellant-accused for the offences under Section 3(1)(x) of S.Cs and S.Ts (P.O.A) Act and Section 323 of the IPC and he is acquitted of the same. The bail bonds furnished by the appellant/accused shall stand cancelled. The fine amount, if any paid by the appellant/accused is ordered to be refunded. ______________________ B.SESHASAYANA REDDY, J. Date: 17th February, 2010. RAR/cs THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Criminal Appeal No.1013 of 2004 Dated :17-02-2010 [1] (2008) 3 Supreme Court Cases (Crl.) 330