HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.2280 of 2004 JUDGMENT: The appellant/accused was convicted by the lower Court under Section 3(1)(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Attrocities) Act, 1989 (in short, the Act) and was sentenced to rigorous imprisonment of two years and fine of Rs.1,000/-. Questioning the same, the accused filed this appeal. The victim woman/PW.1 belongs to mala community and the accused belongs to Vadrangi (Carpenter) caste. Mandal Revenue Officer gave Exs.P.6 and P.7 certificates to the above effect. It is alleged that on 27.11.2003 at about 3:45 PM. when PW.1 was proceeding to her house near Venugopalaswamy Temple of Arnakonda village, the accused in highly intoxicated state pounced upon her on road by trying to open his pant and outrage her modesty, due to which PW.1 sustained simple injuries on her breast. Plea of the accused is one of total denial and not guilty. After trial, the lower Court found the accused guilty of the above charge. The prosecution apart from examining PW.1 who is the victim, examined PWs.2 to 4 as eye-witnesses to the occurrence. After the incident, PW.1 went to her husband PW.5 and both of them went to the police station and PW.1 gave Ex.P.1 report. On the basis of which Ex.P.8 F.I.R. was given by the Head Constable PW.10. PW.9 who is the Sub- Divisional Police Officer authorised in this behalf as per Ex.P.4 proceedings of the Superintendent of Police, took up investigation in this case and filed charge sheet into Court. It is evidence of PW.1 that when she was going in that way, the accused abused her in the name of her caste and questioned her as to why she did not sleep with him. There is no charge against the accused for abusing PW.1 in the name of caste touching Section 3(1)(x) of the Act. The charge against the accused is under Section 3(1)(xi) of the Act for outraging modesty of PW.1. It is evidence of PW.1 that while uttering that he was waiting for the same since a long time, the accused placed his hands on her breasts and frisked them, and that in order to escape from the accused she went into nearby temple. Ex.P.1 is report given by PW.1 to the police on the same day. In Ex.P.1, PW.1 did not allege that the accused placed his hands on her breasts and frisked them. On the other hand, in Ex.P.1, PW.1 stated that the accused came upon her by opening zip of his pant and tried to outrage her modesty. PW.1 in her evidence did not speak to the accused opening zip of his pant. These are two contradictions in evidence of PW.1 from her first report given to the police and relate to material and crucial aspects of the case. The lower Court tried to ignore these material contradictions by saying that PW.1 stated these facts in her statements under Section 161 Cr.P.C. and 164 Cr.P.C. If the statements under Section 161(3) Cr.P.C. and 164 Cr.P.C. contain these allegations, then they amount to improvements of the prosecution case from stage to stage. Neither statement of PW.1 under Section 161(3) Cr.P.C. nor statement of PW.1 under Section 164 Cr.P.C. was exhibited during trial in the lower Court. Therefore, the lower Court could not have gone through contents of those statements while appreciating PW.1. Inspite of no allegation of frisking breasts of PW.1, PW.7 Medical Officer gave Ex.P.3 medical certificate to the effect that PW.1 was having pain and tenderness in right breast which is a simple injury. It appears that the allegation of frisking breasts was improved in her evidence, gathering inspiration from Ex.P.3 medical certificate. PW.2 was a pujari inside the temple. As can be seen from Ex.P.2 crime details form and rough sketch of the scene appended to it, if PW.2 was inside the temple, he had no visibility to the scene of offence. According to PW.2, the accused caught hold of PW.1 and bite her near her breast, PW.1 herself did not state the same. PW.3 is having house at a distance of 100 yards from the scene. She says that the accused was trying to open zip of his pant. PW.4 deposed that the accused behaved in a depraved manner and tried to commit rape on her and also opened zip of his pant and was about to pounce on PW.1. It is not PW.1’s evidence that the accused opened zip of his pant and attempted to commit rape on her. PWs.3 and 4 did not speak anything about the accused touching breasts of PW.1. When there are so many inconsistencies glaring at the Court on material aspects of the case, in my opinion, the lower Court did not appreciate them in the right direction to come to proper conclusion. The above inconsistencies in the evidence of PWs.1 and 2 and in Ex.P.1 go to root of the prosecution case and throw any amount of doubt in the prosecution case. I do not agree with reasoning and conclusion of the lower Court in this case. The lower Court erred in finding the accused guilty of the charge. Hence, the appeal is allowed setting aside the conviction and the sentence passed by the lower Court against the accused and acquitting him. _______________________ SAMUDRALA GOVINDARAJULU,J Dt.27th December, 2011 PNV