*THE HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU +CRIMINAL APPEAL No.2520 of 2004 % 06-09-2011 #Mogili Seshi Reddy and others ….Appellants Vs. $ The Station House Officer, Jonnagiri Police Station Kurnool District and another …. Respondents !Counsel for the Appellants : Sri A.Chandraiah Naidu Counsel for the Respondents: Public Prosecutor <Gist : >Head Note: ? Cases referred: IN THE HIGH COURT OF JUDICATURE OF ANDHRAPRADESH AT HYDERABAD HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.2520 of 2004 DATE: 06.09.2011 Between: Mogili Seshi Reddy and others …… Appellants And The Station House Officer, Jonnagiri Police Station, Jonnagiri (M), Kurnool District and another …..Respondents HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.2520 of 2004 JUDGMENT : A-1 to A-3 who are father and sons are the appellants herein. They were convicted by the lower Court under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and were sentenced to Simple Imprisonment for six months and fine of Rs.1,000/- each. A-2 and A-3 were also convicted under Section 323 I.P.C and were sentenced to pay fine of Rs.1,000/- each. Questioning the same, A-1 to A-3 filed this appeal. 2) P.W-1/victim belongs to Mala community which is a scheduled case, where as A-1 to A-3 belong to Reddy community. There is no dispute about the castes of the parties. Ex.P-7 is caste certificate relating to P.W-1. It is alleged that on 08.12.2003 at about 5.00 P.M when P.W-1 and his sister P.W-2 were talking to each other near drinking well in Jonnagiri village, A-1 who is having agricultural land near the well went to P.W-1 and abused him touching his Mala caste and questioned him as to whether it was the way for him to move, and that when P.W-1 questioned A-1 about the manner in which he spoke, A-2 and A-3 interfered and they also abused P.W-1 touching his M a la caste and pounced upon him and caused injuries to him. Plea of A-1 to A-3 is one of total denial and one of not guilty. 3) During trial in the lower Court, P.Ws 1 to 3 supported the prosecution case. The other eye witness P.W-4 turned hostile to the prosecution and did not support the prosecution case. P.W-5 is the medical officer, who examined P.W-1 and issued Ex.P-3 wound certificate. 4) Even though the offence is stated to have taken place on 08.12.2003 and in spite of the police station located in the same village, P.W-1 did not choose to give his report Ex.P-1 to the police on the same day of occurrence. He gave Ex.P-1 report to P.W-6, the Assistant Sub Inspector of Police on 10.12.2003 at 10.00 A.M. It is evidence of P.W- 1 that out of fear for the accused, after the offence he went away to Gooty and returned to the village on 10.12.2003 and thereafter, gave report to the police. In a case of this nature, delay of about 40 hours in giving report to the police does not assume much importance. This is not an offence relating faction dispute in which there is possibility of several persons being roped into the case after consultations and confabulations. 5) It is contended by the appellants’ counsel that when the offence took place at a public place on road near drinking water well, there is possibility of persons moving around the scene at the time of offence and that failure of the prosecution to examine independent witnesses is fatal to the prosecution. Except details of the scene of offence, there is nothing on record to show that there were any other persons than P.Ws 1 to 4 and A-1 to A-3 at the scene at the time of offence. Even though P.Ws 1 and 2 are closely related as brother and sister and P.W-3 is related as cousin, there is an independent witness P.W-4 in this case. The said independent witness who belongs to Madiga caste did not support the prosecution case. Independence of the witnesses cannot be determined on the basis of their castes. Even from among the same community people, there may be independent witnesses. It gives wrong signals if it is observed that witnesses cannot be said to be independent simply because all of them belong to one and the same caste. 6) P.W-8 who is the then Sub Divisional Police Officer, Dhone took up investigation in this case in accordance with Rule 7 of the S.Cs and S.Ts (Prevention of Atrocities) Rules, 1995. He perused copy of F.I.R in this case during tapal on 12.12.2003 and thereupon he took up investigation of this case. He examined P.Ws 1 to 4 on 12.12.2003 itself. It is contended by the appellants’ counsel that his investigation is vitiated as P.W-8 received authorisation from the Superintendent of Police by way of proceedings dated 14.12.2003. It is P.W-8’s evidence that after going through F.I.R in this case, he contacted the Superintendent of Police by phone and obtained permission from the Superintendent of Police and proceeded with the investigation of this case thereafter on 12.12.2003 itself and that subsequently on 14.12.2003 he received proceedings of the Superintendent of Police of the even date authorising him as investigating officer in this case. It is no doubt true that Rule 7 of the Rules is held to be mandatory. This not a case where P.W- 8 started, proceeded and completed investigation without any authorisation from the competent authority viz., the Superintendent of Police. In this case P.W-8 obtained oral permission of the competent authority for investigation and started the investigation and while proceeding with the investigation, he received formal proceedings from the competent authority two days thereafter. Subsequently P.W-8 continued the investigation and collected some more evidence and arrested the accused. In my opinion, until getting formal orders of the competent authority empowering the investigating officer for investigation in a case of this nature, the department cannot afford to wait and cannot allow evidence to dwindle without its collection and preservation. The proceedings dated 14.12.2003 of the Superintendent of Police validate the entire investigation of P.W-1 in this case. Therefore, there is no illegality or irregularity or impropriety on the part of P.W-8 in taking up investigation of this case and completing the investigation. 7) Coming to merits of the case, it is contended by the appellants’ counsel that false case was foisted against the accused due to political rivalry at the instance of one Guruswamy who was elected as Surpanch and who was supported by the prosecution party and who was opposed by the accused party during elections. P.W-1 denied the suggestion made by the defence counsel in that regard. Except a suggestion which was promptly denied, there is no other material on record to substantiate this contention of foisting false case due to political reasons. 8) It is evidence of P.Ws 1 to 3 that A-2 caught hold of neck/throat of P.W-1 and scratched on his chest and beat him on chest and that A-3 scratched P.W-1 on his cheek. The medical officer P.W-5 found a scratching injury only on chest, apart from complaints of pain on neck. He did not find any injury on any cheek of P.W-1. There is no medical corroboration for the overt act alleged against A-3. Therefore, I doubt the presence of A-3 at the scene and his participation in the offence. If really A-2 intended to insult P.W-1 as he belongs to Mala caste, A-2 could have dealt with blows on P.W-1 with any stick or other weapon without touching him. The fact that A-2 is alleged to have caught hold of neck of P.W-1 and scratched on chest of P.W-1, indicates that he has no discrimination on the basis of caste. A-2 did not hesitate to touch P.W-1 with his hands. It is contended by the accused during trial in the lower Court that P.W-1 questioned A-1 because he was moving through agricultural land belonging to A-1 unauthorisedly. This is not a case where A-1 questioned P.W-1 on the ground that he was moving in the locality of the accused. P.W-3 denied the said suggestion. On the other hand, P.W-4 who turned hostile for the prosecution deposed that A-1 abused P.W-1 saying as to how he has got right to move through his garden land. Genesis of this incident appears to be the unauthorised entry and movement of P.W-1 across garden land belonging to A-1; and when A-1 questioned P.W-1 about the same, P.W-1 became aggrieved and went away and after two days he gave Ex.P-1 report alleging abuses in the name of his caste. Evidence of P.W-4 casts shadow of doubt on the prosecution case as to the reason for the incident as contended by the prosecution. Even as per the prosecution case at the place of incident, A-1’s agricultural land is there. In those circumstances, I am of the opinion that the lower Court did not appreciate the evidence on record with reference to genesis of the incident and came to an erroneous conclusion in favour of the prosecution. I do not agree with the reasoning and finding of guilt recorded by the lower Court. 9) In the result, the appeal is allowed setting aside the convictions and the sentences passed by the lower Court against the appellants 1 to 3/A-1 to A-3 and acquitting them. _______________________________ SAMUDRALA GOVINDARAJULU, J September 06, 2011 NOTE: L.R.Copy to be marked (b/o)ksh