THE HONOURABLE SRI JUSTICE B.SESHASAYANA REDDY CRIMINAL APPEAL NO.1012 OF 2004 15TH FEBRUARY 2010 BETWEEN: BOYA KODUBURAIAH & OTHS .. APPELLANTS AND STATEOF A.P. REP. BY P.P., HIGH COURT OF A.P. .. Respondent THE HONOURABLE SRI JUSTICE B.SESHASAYANA REDDY CRIMINAL APPEAL NO.1012 OF 2004 JUDGMENT: 1. This Criminal Appeal is directed against the judgment dated 27.4.2004 passed in SC ST SC NO.27 of 2003 on the file of Special Judge for SCs and STs (POA) Act, Kurnool, whereby and whereunder the learned Special Judge found A1-Boya Koduburaiah, A2-Boya Anumesh and A3-Boya Veeresh guilty for the offence under section 3(1)(x) of S.C and S.T. (POA) Act and convicted them accordingly and sentenced each of them to undergo S.I. for a period of 6 months and a fine of Rs.1,000/-, in default, SI for 3 months; A1 guilty for the offence under section 324 IPC and convicted him accordingly and sentenced to undergo SI for 6 months; and found A1 to A3 guilty for the offence under section 323 IPC convicted them accordingly and sentenced each of them to pay a fine of Rs.1,000/- each. All the substantive sentences have been directed to run concurrently. 2. The prosecution case, in brief, is: A1 to A3 are residents of Kapati village of Adoni Mandal. On 13.12.2002 at 11 a.m. a police constable went to Kapati village and made enquiries for Ediga Narayana. P.W.1 Harijana Balaiah had shown the house of Ediga Narayana to the police. A1 to A3 nourished a grudge against P.W.1 for his showing the house of Ediga Narayana to the police. On 13.12.2002 at about 10.30 p.m. P.W.1 was returning home after witnessing a cinema. On reaching Anjaneyaswamy temple, A1 to A3 picked up a quarrel with him and abused him by naming his caste as Madiganakoduka. It is further alleged that A1 beat him with a stick on his head and caused bleeding injury and whereas A2 and A3 beat him with hands. P.Ws.2 and 4 witnessed the incident and shifted P.W.1 to his house and from there to Isvi Police Station. P.W.1 presented Ex.P.1 report before the Station House Officer, Isvi Police Station. P.W.6 Sk.Mahaboob Vali, ASI of Police, Isvi Police Station received Ex.P.1 report, registered a case in Crime No.65 of 2002 under sections 324 IPC and under section 3(1)(x) of SCs and STs (POA) Act and issued Ex.P.5 FIR. He sent P.W.1 to Government Hospital, Adoni through P.C.837. P.W.3 Dr.M.Rajeshwari, CAS, Government Area Hospital, Adoni, examined P.W.1 medically and found the following injuries on his person: 1) A lacerated wound on the left parietal region of the head of size 2” x ½” x ¼”; 2) A contusion on right lower back of size 3” x 1”; 3) A contusion on the right knee joint of size 2” x 1”. She opined that the injuries are simple in nature and accordingly issued Ex.P.2 wound certificate. P.W.7 P.Srinivasa Reddy, Sub-Divisional Police Officer, Adoni, took up investigation. He examined P.W.1 and recorded his statement under section 161 Cr.P.C. He proceeded to Kapati village and prepared a rough sketch of the scene and secured the presence of Chinna Eranna, Jayanna, Sourappa, Anand and Boya Mahanandi and examined them and recorded their statements. He arrested A1 to A3 at Kapati village on 20.12.2002 and sent them for remand. Ex.P.6 is the rough sketch of the scene of offence. After completing investigation, he laid charge sheet before the JMFC, Adoni. The learned Magistrate took the charge sheet on file as P.R.C.No.4 of 2003 and committed the same to the Sessions Division, Kurnool. The learned Sessions Judge, took the charge sheet on file as S.C.No.27 of 2003 and made over the same to the Special Sessions Judge for SCs & STs (POA) Act, Kurnool. The learned Special Sessions Judge, on hearing the prosecution and the accused, framed the following charges: Charge No.1: Against A1 to A3 for the offence under section under section 3(1)(x) of S.C and S.T. (POA) Act; Charge No.2: Against A1 for causing simple hurt to P.W.1 punishable under section 324 IPC; Charge No.3: Against A1 to A3 for causing hurt to P.W.2 punishable under section 323 IPC; Charge No.4: Against A1 to A3 for the offence punishable under section 355 IPC. The learned Special Sessions Judge read over and explained the charges to the accused, for which the accused pleaded not guilty and claimed to be tried. To bring home the guilt of the accused for the offences with which they stood charged, prosecution examined 7 witnesses as P.Ws.1 to 7 and marked 7 documents i.e. Exs.P.1 to P.7. On behalf of the accused one witness was examined as DW.1 to prove that P.W.1 has been baptised and he is a roman catholic and he does not belong to Scheduled Caste. The learned Special Sessions Judge, on considering the evidence brought on record and on hearing learned counsel for the parties, found A1 to A3 guilty for the offence under section under section 3(1)(x) of S.C and S.T. (POA) Act, further found A1 guilty for the offence under section 324, and A1 to A3 under section 323 IPC and, accordingly, sentenced them as stated supra by the judgment impugned in this appeal. 3. Heard learned counsel appearing for the appellants/accused and learned Additional Public Prosecutor appearing for the respondent-State. 4. Learned counsel appearing for the appellants/accused submits that the attack on P.W.1 by the accused even according to the prosecution, is not because of his belonging to scheduled caste and it is because of his giving information to the police about the identity of the house of one Ediga Narayana and therefore the conviction and sentence of the appellants/accused for the offence under section 3(1)(x) of the SC & ST (POA) Act is wholly unwarranted and the same is liable to be set aside. A further submission has been made by learned counsel that the evidence of P.W.1 is not cogent and consistent and therefore it does not inspire confidence, and in which case the conviction and sentence of the appellants/accused for the offences under sections 323 and 324 IPC is not legal and proper and the same is liable to be set aside. 5. Learned Additional Public Prosecutor supported the judgment under appeal. In elaborating his arguments learned Additional Public Prosecutor submits that P.W.1 has stated that he has been attacked by naming his caste and the act of the accused comes within the purview of Section 3(1)(x) of SCs and STs (POA) Act, in which case the conviction and sentence of the appellants/accused for the offence under section 3(1)(x) of SCs and STs (POA) Act is legal and proper and the same is not liable to be interfered in this appeal. 6. P.W.1 Balaiah is the injured. P.W.3 Dr.M.Rajeshwari is the doctor who examined him and issued Ex.P2 wound certificate. P.W.6 is the S.I. of Police who received Ex.P.1 report from P.W.1 and sent him to Government Hospital for medical examination. The evidence brought on record clearly establishes that P.W.1 sustained injuries in the incident. P.W.1 testifies that on 13.12.2002 at about 10.30 p.m. when he was returning to his house after witnessing a cinema and that on nearing Anjaneyaswamy temple all the accused abused him by touching his caste and that A1 beat him with a stick on his head and caused bleeding injuries and whereas A2 and A3 beat him with chappals on his mouth and back. P.W.2 is an independent witness and he corroborated the testimony of P.W.1 in all material aspects. Therefore, the prosecution is able to prove that P.W.1 received injuries in the hands of the accused. The trial court convicted A1 for the offence under section 324 IPC for causing injuries to P.W.1. Once there is a conviction for causing simple injury with a deadly weapon, further conviction under section 323 IPC for causing injuries to P.W.1 is not warranted. Therefore, the conviction of A1 for the offence under section 323 IPC is liable to be set aside. 7. Learned counsel for the appellants/accused submits that for recording a conviction under Section 3(1)(x) of SC and ST (POA) Act the prosecution has to prove that the accused made utterances by naming the caste with an intention to humiliate P.W.1 and since the attack of the accused on P.W.1 is not because P.W.1 belongs to a particular community, but because he happened to show the house of Ediga Narayana under whom the accused are working, to the police and therefore the conviction and sentence of the appellants/accused for the offence under Section 3(1)(x) of SC and ST (POA) Act is liable to be set aside. In support of her contentions, reliance has been placed on the judgment of STATE OF KERALA V. HASSAN[1], wherein it has been held that the real question to be considered therefore is whether the utterance made by the accused would have been intentionally made to humiliate P.W.1 as a member of Scheduled Caste. Para 10 of the judgment needs to be noted and it is thus: “ 10. The Bench decision in RAMACHANDRAN V. STATE OF KERALA (1996(1)KLT 296) is authority for the proposition that one of the ingredients to be proved for establishing the offence under Section 3(2)(v) of the Act is to establish that the offence was committed on the ground that the victim is a member of Scheduled Caste/Scheduled Tribe. Drawing an analogy therefrom in a prosecution under Section 3(1)(x) it has to be established that the humiliation intended is on the ground that the victim is a member of such caste or tribe. Such evidence is wanting in the present case.” 8. P.W.1 has stated that he has been attacked by the accused since he showed the house of Ediga Narayana to the police. For better appreciation, I may refer the evidence of P.W.1 in his own words. He stated in his chief- examination as under: “ I know L.Ws.2 Chinna Eranna, L.W.3 Jayanna, L.W.4 Sourappa, L.W.5 Anand, L.W.6 Mahanandi. I am madiga by caste. I know the accused and they belong to Golla caste. On the incident took place on 13.12.2002 at about 10.30 p.m., near Anjaneya Swamy temple. All the accused were working under Ediga Narayana. On the same day i.e. on 13.12.2002 at 10.30 a.m. and 11 a.m. police came to our village and made inquiries for Ediga Narayana with Bala Muni who is uncle to me. On that Bala Muni instructed me to show the house of Ediga Narayana to police. Then I proceeded to the house of Ediga Narayana with police and shown his house to police. At that time Ediga Narayana was not present in the house. On the same night when I was returning after seeing 16 MM cinema at about 10.30 p.m. on the way near Anjaneya Swamy temple, A1 to A3 came opposite to me and abused me by touching my caste as Madiga na koddaka by abusing me that why I have shown the house of Ediga Narayana to police and among the accused, A1 beat me with a stick on my head and caused bleeding injuries. A2 and A3 beat me with chappal on my mouth and on my back. L.W.2 and 3 witnessed the incident and they took me to my house. I returned to my house and went to P.S. on the same night and gave complaint to the police. Police took me to the hospital. Ex.P.1 is the complaint. DSP examined me at police station.” 9. A close scrutiny of the evidence of P.W.1 indicates that he has been attacked by A1 to A3 not because he belongs to a particular community, but because he had shown the house of Ediga Narayana to the police. Therefore, I am of the view that the attack on P.W.1 is not because of his belonging to any particular community or caste, but because he has shown the house of Ediga Narayana to the police. In these circumstances, Section 3(1)(x) of SCs and STs (POA) Act cannot be made applicable. Therefore, the conviction of the appellants/A1 to A3 for the offence under section 3(1)(x) of SCs and STs (POA) Act cannot be sustained and accordingly the same is hereby set aside. 10. With regard to the sentence imposed on appellant No.1/A1 for the offence under sections 324 IPC he has been in jail as under trial prisoner from 20.12.2002 to 8.1.2003 and as convict from 27.1.2004 to 18.5.2004. Considering the period of detention either as a convict and as under trial prisoner, I am of the view that the period already undergone by him would meet the ends of justice. 11. In the result, this Criminal Appeal is partly allowed setting aside the conviction of the appellant/A1 to A3 for the offence under section 3(1)(x) of SCs and STs (POA) Act and they are acquitted of the same. Further the sentence imposed on A1 for the offence under section 324 IPC is reduced to the period already undergone. The conviction of the appellant No.1/A1 for the offence under section 323 IPC is set aside and the fine, if any, paid by him, is ordered to be refunded. The fine amount paid, if any, by the appellants/A1 to A3 for the offence under section 3(1)(x) of SCs and STs (POA) Act is also ordered to be refunded. Bail bonds furnished by the appellant/accused shall stand cancelled. 15th February 2010. (B.Seshasayana Reddy,J) tnb THE HONOURABLE SRI JUSTICE B.SESHASAYANA REDDY CRIMINAL APPEAL NO.1012 OF 2004 15TH FEBRUARY 2010 [1] 2002(2) ALT (CRL.) 133 (KER.)