THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No. 2344 of 2004 JUDGMENT: The appellant/accused was convicted by the lower Court under Section 354 I.P.C. and Section 3(1)(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short, the Act) and was sentenced to rigorous imprisonment of two years and fine of Rs.100/- on each count separately. Questioning the same, the accused filed this appeal. It is alleged that on 09.06.2001, the victim girl-PW2 went to lemon garden of the accused in Ramasagaram Village for plucking ripe lemons and that at about 4:30 P.M., the accused came behind her and hugged her and threw her on ground and that when she raised cries, the other coolie PW4 came there and that thereupon, the accused left her and went away. Plea of the accused is one of total denial and not guilty. After trial, the lower Court found the accused guilty of both the charges. It is contended by the appellant’s counsel that the lemon garden where scene of the offence is located does not belong to the accused and that he has no connection with the said lemon garden. It is further contended that there is delay of two days in giving report to the Police. It is also contended that there are political groups in the village and PW5, who is ex-sarpanch and who is related to PWs 1 to 3, have money dispute with father of the accused and that therefore, he got this false case foisted through PWs 1 and 2 against the accused. It is further contended that there is land belonging to Arundhatiya community in the village and for going to that land, one has to pass through the land of the accused and that there are disputes with regard to the said way and that therefore, this case was foisted against the accused. It is uncontraverted evidence of PW1 that he belongs to Arundhateeya community and the accused belongs to upper caste. DW1 says that he accused belongs to Kamma caste. PW2/victim is daughter of PW1 and PW3. It is evidence of PW2 that after the offence, she went to house and informed the same to her mother-PW3. PW1 was not available in the house on the date of offence i.e. on 09.06.2009. It is evidence of PWs 1 to 3 that PW1 left the house on 09.06.2001 in the morning for selling mangoes at Chennur, Gudur and other places and returned to the house on 10.06.2001 at about 3:00 P.M. After PW1 returned to the house, PWs 2 and 3 informed about the offence to PW1. PW1 approached PW5 who is former Sarpanch of the village and reported the same to him. It is evidence of PW5 that he called two mediators including PW6 and that they called the accused, but the accused did not turn up. PW6 says that PW1 directly came to him on the next date of offence and informed the same to him and that when he and Rammurthy Naidu called the accused and enquired him, the accused gave evasive answers and that therefore, he suggested PW1 to give report to the Police. Therefore, PW1 along with PWs 2 and 3 went to the Police Station on 11.06.2001 at about 8:00 A.M. and gave Ex.P1 report. PW7 who is the then Assistant Sub-Inspector of Police, Sydapuram Police Station, received Ex.P1 from PW1 and registered case in Crime No.35 of 2001 under Section 354 I.P.C. and Section 3(1)(xi) of the Act and issued Ex.P2-FIR. PW8 who is the then Sub Divisional Police Officer, Gudur, investigated into the case, examined witnesses, prepared Ex.P3-rough sketch of the scene, arrested the accused on the night of 11/12-06-2001 and filed charge sheet before the Magistrate. In Ex.P3 rough sketch of the scene, he gave scene of the offence as lemon garden of Guthikonda Nageswara Rao. But, PW8 gave name of owner of lemon garden as P.Krishna Rao at one place and P.Koteswara Rao at another place and finally gave name of owner of the lemon garden as Guthikonda Nageswara Rao and deposed that by mistake he gave that name as P.Koteswara Rao. According to PW8, the said garden was under the lease taken by the accused. It is evidence of PWs 1 to 4 that PW2 and PW4 along with others went to lemon garden of the accused for work when called by the accused. Nowhere in cross- examination of PWs 1 to 4 it is challenged that the accused has nothing to do with the lemon garden. The accused examined DW1 who belongs to Turpu Poondla Village to which place the accused also belongs to. He says that the accused has nothing to do with the lemon garden of Guthikonda Nageswara Rao. The scene of offence in that garden is in Ramasagaram Village with which DW1 has no concern. No weight need be attached to the evidence of DW1 who is a chance witness. The evidence on record discloses that though the land belonged to Guthikonda Nageswara Rao, it was taken on lease by the accused who raised lemon garden therein and who employed coolies for plucking ripe lemon fruits from the trees in that garden. It is evidence of PW2 that on 09.06.2001, she went for coolie work to pluck lemon fruits along with PW4 and that at about 4:30 P.M. when she, PW4 and Nagamma, were working in the lemon garden, the accused came on her backside and caught hold of her hands and fell her on the ground and that she raised cries and on hearing her cries, PW4 and Nagamma came there. She says that PW4 and Nagamma were at a distance of two trees from her and that on seeing them, the accused left her and went away. In cross-examination, PW2 deposed that prior to the offence also, she used to attend coolie work in lemon garden of the accused and that the accused did not try to commit any offence at any other time. Even though PW2 was going to school, she was attending to coolie work on holidays. It is evidence of PW4 that while doing work in garden of the accused at about 4.30 P.M. they were cutting and collecting lemon fruits and that PW.2 raised cries at a distance of 20 feet and that she, Nagamma and Hymavathi went there to PW.2 and found PW.2 on the ground and that the accused went away and that when they questioned PW.2, she stated about the accused coming on her back and catching hold of her and pushing her down on the ground. In cross-examination she says that Watchman did not come to the scene of offence. She admits that PWs.1 to 3 belong to her caste. She says that PW.1 was attending to coolie work whenever there are holidays. She says that when they came to the scene of offence they found the accused standing and PW.2 lying on ground at a distance of 3 feet. Evidence of PW.4 is a relevant piece of evidence under Section 6 of the Indian Evidence Act as it is a piece of res gestae. After coming home, PW.2 informed the offence to her mother PW.3 on the same day. When PW.1 returned to the house on the next day, PWs.2 and 3 informed the same to PW.1. It is contended by the appellant’s counsel that even though father of the accused was available in the same garden, both PWs.2 and 4 admit that they did not report the incident to father of the accused. On the other hand, they went away from the garden. It is contended that it is unnatural and artificial. There was no use of reporting the incident to father of the accused after the offence was committed. The victim along with her parents approached PW.5 who is a caste elder on the next day of the offence after PW.1 returned to the house, with an intention to see that he helps them in mediation and if it fails, for his assistance to give report to the police. It is contended by the appellant’s counsel that there is dispute between PW.5 and the accused, as the accused filed suit for recovery of money on promissory note in Gudur Court against him. PW.5 admits the fact of the accused filing suit for recovery of money on the basis of promissory note against him in Gudur Court. But, family of PW.1 have no previous disputes with the accused. That is the reason why when the accused called PW.2 for coolie work, PW.2 went to garden of the accused for attending coolie work. There is no close relationship between family of PW.2 and PW.5. PW.2 stated in cross- examination that PW.5’s son was given in marriage to her paternal uncle’s daughter. It is not the defence version in the lower Court that because of the said relationship PW.1 foisted false case against the accused with any oblique motive as the accused filed suit on the basis of promissory note against PW.5. It is further contended by the appellant’s counsel that there is dispute with regard to ‘rasta’ to the lands of Arundhatiya community people. PW.4 admits in cross-examination that they have got lands and to reach their lands they have to pass through the lands of the accused. She expressed ignorance by saying that she does not know whether there was a dispute with regard to ‘rasta’ to go to their lands. It is not proved by the accused that there was any prior pending dispute between the persons belonging to Arundhatiya community and the accused with regard to ‘rasta’ to their lands. These contentions raised by the appellant’s counsel are not based on any material on record. On perusal of the entire evidence on record and on re-assessment of the same, I am of the opinion that the lower Court rightly came to the conclusion in favour of the prosecution and against the accused on merits. It is contended by the appellant’s counsel that the offence under Section 354 IPC and the offence under Section 3 (1) (xi) of the Act are one and the same, the only difference being the victim in the latter case being a person belonging to scheduled caste or scheduled tribe. In Vidyadharan v State of Kerala[1] the Supreme Court observed: “The only difference between Section 3 (1) (xi) and Section 354 is essentially the caste or the tribe to which the victim belongs. If she belongs to a Scheduled Caste or Scheduled Tribe, Section 3 (1) (xi) applies. The other difference is that in Section 3 (1) (xi) dishonour of such victim is also made an offence”. The Supreme Court did not lay down that prosecution of the accused for both the offences on the same transaction is not permissible in law. But, this Court in Kuriminelli Chinna v State of A.P.[2] held: “A close look at both sections disclose that the outraging of modesty is punishable under both the sections. The Sessions Judge has framed the charges under both the sections Accused is being prosecuted for outraging of modesty on two counts under two different sections which is not permissible under law. It is only a repetition of the charge. But, penal sections are quite different. The prosecution shall always keep it in mind that it is not open to prosecute the accused for the self-same offence under two different charges. When once a charge is framed under Section 3 (1) (xi) of the SC and ST Act, it excludes the applicability of Section 354 IPC and the accused shall not be prosecuted for the offence under Section 354 IPC, in cases where Section 3 (1) (xi) is invoked”. This Court rendered the above decision on 15.12.2003 without noticing Vidyadharan (1 supra) rendered by the Supreme Court on 14.11.2003. If the arena is examined afresh in the light of the above two pronouncements, it follows that the offence under Section 354 IPC deals with only a case of assault or use of criminal force to any woman with an intention to outrage her modesty, whereas the offence under Section 3(1) (xi) of the Act deals with a situation where assault or use of criminal force to any woman belonging to a scheduled caste or a scheduled tribe with an intention either to dishonour or outrage her modesty. The element of intention to dishonour is absent in the offence under Section 354 IPC. Therefore, it must be held that the offence under Section 3(1) (xi) of the Act contains an additional angle to be addressed than the offence under Section 354 IPC. It may also be noticed that in the case of an offence under Section 354 IPC, it is punishable with imprisonment which may extend to 2 years or with fine or with both. This is so in the central enactment. There is Andhra Pradesh Amendment to Section 354 IPC prescribing sentence of imprisonment for a term which shall not be less than 5 years, but which may extend to 7 years and shall also be liable to fine. A proviso is added in Andhra Pradesh to the effect that the Court may for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment which may be less than 5 years but which shall not be less than 2 years. The minimum sentence prescribed for an offence under Section 354 IPC is imprisonment of 5 years and for special reasons, of 2 years. Whereas for the offence under Section 3 (1) (xi) of the Act, the punishment prescribed is imprisonment for a term which shall not be less than 6 months but which may extend to 5 years and with fine. The maximum sentence of imprisonment for the offence under Section 354 IPC as it stands in Andhra Pradesh is 7 years. If both the above offences are examined in the light of the prescribed imprisonment, then one may not come to the conclusion that the offence under Section 3 (1) (xi) of the Act is an aggravated offence to the offence under Section 354 IPC. In the light of the above discussion, this Court is of the opinion that prosecution lies for both the offences under Section 354 IPC as well as Section 3 (1) (xi) of the Act in respect of the same transaction. Therefore, the lower Court is justified in law in finding the accused guilty under both the Section 354 IPC and Section 3 (1) (xi) of the Act and awarding separate convictions and sentences. In the result, the appeal is dismissed. _________________________________ SAMUDRALA GOVINDARAJULU,J Dt. 5th December, 2011. YSK/PNV [1] 2004(1) SCC 215 [2] 2004(1) ALD Criminal 506 A.P