THE HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.1350 OF 2004 DATED 14th DECEMBER, 2010. BETWEEN : K.Laxma Reddy ..Appellant-accused and The State of A.P. ..Respondent THE HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.1350 OF 2004 JUDGMENT: This is an appeal arising out of conviction and sentence imposed on the appellant-accused in S.C.No.49 of 2002 on the file of the I Additional District and Sessions Judge, Ranga Reddy District, by judgment dated 28.06.2004 wherein the accused was convicted under Section 235 (2) Cr.P.C. and sentenced to undergo two years imprisonment and pay a fine of Rs.5,000/- for the offence under section 3 (1) (x) of SCs & STs (POA) Act. The allegations levelled against the appellant are that on 25.12.2001 at about 3.00 p.m. when the accused was transporting the sand illegally through his tractor, L.W.1 and others detained the tractor and when L.W.1 went to make a phone call, accused abused him in filthy language by taking his caste name and beat him with chappal. Hence, the case. Heard. In order to prove its case Prosecution got examined PWs 1 to 7 and marked Exs.P.1 to P.5. When examined under Section 313 Cr.P.C. accused denied the incriminating circumstances read over to him. Though he did not choose to adduce any oral evidence, he got marked Ex.D.1 on his behalf. After evaluating the entire evidence on record, the learned trial Judge convicted the accused as stated above. Among the prosecution witnesses, PWs 2 and 3 turned hostile. P.W.1, who is the complainant, deposed before the Court reiterating the contents of Ex.P.1 complaint. P.W.4, who claims to be the eye witness, deposed in the same line of the evidence adduced by P.W.1. But, in cross examination, he admits that he informed the Police at the time of investigation that he came to know about the offence through others. In view of the same, P.W.4 cannot be termed as an eye witness to the occurrence. The only witness in support of the case of the prosecution is P.W.1, the complainant in the present case. The investigating officers P.Ws. 5 and 6 were examined only in chief. In spite of recalling them for cross examination, they failed to appear before the trial Court to face cross examination. Hence, the trial Court eschewed the evidence of PWs 5 and 6. Hence, the evidence of PW.1 alone is available before this Court for appreciation of the present case. It is the specific case of the complainant PW.1 that he lodged a complaint on 25.12.2001 whereas the complaint produced before the Court clearly reveals that the complaint was received only on 03.01.2002. Hence, it is evident from the record that the original complaint lodged by the complainant was suppressed by the Prosecution. Hence, the genesis of the complaint itself is in doubt and the Prosecution is not in a position to establish that the present case is in pursuance to the complaint lodged by PW.1 complainant on 25.12.2001. Hence, this Court is of the view that it is unsafe to convict the accused on the basis of the present evidence available on record. Hence, the conviction and sentence imposed on the appellant is liable to be set aside. Accordingly, the Criminal Appeal is allowed and the conviction and sentence imposed on the appellant by the trial Court in S.C.No.49 of 2002 on 28.06.2004 is hereby set aside and the appellant is acquitted of the charge levelled against him. Fine amount paid by the appellant, if any, shall be returned to him. ________________________ JUSTICE RAJA ELANGO Dated : 14.12.2010 sur