Sri K.V. Ramanaji Rao

1

IN THE COURT OF THE ADDITIONAL SESSIONS JUDGE AT VIZIANAGARAM

Present:- Sri K.V. Ramanaji Rao,

Special Judge for trial of cases under SCs & sTs (POA) Act,

Cum-IV Additional District Judge, ,

FAC I Addl. Sessions Judge, Vizianagaram

Thursday, this the 12th day of March, 2015.

SESSIONS CASE No. of 201

P.O.C.S.O. 47 4

Name of the ComplainantState, represented by the Sub

Inspector of Police, Elwinpeta Police Station Name of the accused Nimmaka Rajesh son of late Mohanarao @ Jatglayya, 28 years, ST Jathapu, Manda village, GL Puram Mandal.

Charges Under section 354-B and 506(2) IPC and under section 10 of Protection of Children from Sexual Offences Act.

Plea of the accusedAccused pleaded not guilty

Finding of the Judge Accused is found guilty for the offence

Under sections 354-B and 506(2) IPC and under section 10 of Protection of

Children from Sexual Offences Act.

Accused is convicted under section Sentence of order 235(2) of Cr.P.C., for the offence un- der sections 354-B and 506(2) IPC and under section 10 Protection Of

Children from Sexual Offences

Act,2012.

Accused is sentenced to un- der go RIGOROUS Imprisonment for a maximum period of seven (7) years and also to pay a fine of

Rs.1,000/- and in default of pay- ment of fine he is ordered to under go simple imprisonment for a period of one (1) month, for the offence under section 354-B of IPC.

Accused is sentenced to under go

RIGOROUS Imprisonment for a pe- riod of seven (7) years for the of- 2 fence under section 506(2) of IPC.

Accused is sentenced to under go

RIGOROUS Imprisonment for a pe- riod of seven (7) years and also to pay a fine of Rs.3,000/- and in de- fault of payment of fine he is or- dered to under go simple imprison- ment for three (3) months, for the offence under section 10 of Protec- tion Of Children from Sexual Of- fences Act.

It is further ordered that all the above sentences imposed against the accusedshallrunconcurrently (simultaneously).It is further ordered that the remand period undergone by accused, if any (from 19.12.2014 to till date) is ordered to be set off under section 428 Cr.P.C.

M.O.1 which is a compact Disc is ordered to be kept in record as it is a material piece of evidence.

Prosecution conducted byAddl.Public Prosecutor, Vizianagaram.

Defence conducted bySri K.B. Parameswara Rao, Legal Aid

Counsel for accused.

JUDGMENT;

The State represented by the Inspector of Police, Elwinpeta po- lice Station, filed the charge sheet against the accused in Crime No.26/2014 for the offence under Section 354-B, and 506(2) IPC and under Section 10 of

Protection of Children from Sexual Offences Act.

2.The matrix of the prosecution as per legal evidence let in during trial is as follows :

The victim girl is aged 8 years and studying 3rd class and as per evidence of P.W.1, who is victim girl when herself and Vikas, who is aged 7 years and studying 2nd class in the same school, were collecting Tamarind under a tamarind tree, which is situated by the side of their school and dis- tributing the tamarind, the accused came there and it was raining by then 3 and the accused told to victim girl that, he will teach the games and thereby took her into his fold and took into a class room of the school which is a very building. The accused removed the cloths of victim girl and also removed T-

Shirt and Nikker of him and he was not wearing drawer and he laid down on the victim and also put his penis (bulla) into her vagina (bulla) and asked the victim to caught hold of his penis but she refused and the accused by force got the victim to caught his penis into her vagina and she got pain and weeping. The accused pressed her mouth therefore, she could not raise any cries and the same was witnessed by Vikas who is weeping and in the meanwhile, a sound is heard from the well which is near the school and thereupon the accused left the victim girl and threatened her to kill if she tell the same to any one and by collecting his cloths, ran away nakedly, by keeping his cloths in his arm-pit. Later the victim girl wore her cloths by her- self and herself and Vikas left to their houses. She did not inform the same to her parents due to fear. On 28th the accused came to their house at 7 p.m., and on seeing him, she frightened and shivered due to fear and then her parents asked why she was shivering and the accused also asked for food and her mother gave food and after eating he left and when she is still shivering, her parents asked the reason. She told the entire incident to her parents and on the next day her father and others caught the accused and tied him to pole and beat him and later took him to the police station.

3Later two male police and two women police constables came to her and questioned her what happened and she was video shooted by lady police when she gave statement and police recorded her statement.

4The victim girl who is examined as P.W.1, also stated in her evi- dence that later she was taken to Bobbili Magistrate Court by her parents and she stated the same before a Lady Magistrate (164 Cr.P.C., Statement) also and she (PW1) also signed on the same and she can sign as well as in

English and Telugu also.

5On the report given by the father of the victim girl viz., Sri P.

Sivaraju (PW2) to the S.I. of Police, Sri Ippalavalasa Gopi (PW9), a case in crime No.26/2014 was registered and he sent the original FIR (Ex.P.9) along with report (Ex.P.1) to this designated Court and copies to the higher offi- cials, and took up investigation and examined the witnesses and recorded their statements, prepared rough sketch of the scene of offence and got prepared scene observation report, got videographed when statement of vic- tim girl is recorded with the help of two women home guards viz., Smt.

Yenugula Mangamma (PW6) and Smt. A.Vasantha (not examined) and also recorded the statement of witnesses, arrested the accused, sent him to re- mand to judicial custody and collected the Date of Birth certificate of victim 4 girl from the Head Mistress, Smt.Nimmaka Krumamma (PW7) and obtained the study certificate (Ex.P.3) of the victim girl, wherein the Date of Birth of the victim is mentioned as 21.6.2007, and got recorded the 164 Cr.P.C., statements of victim girl, parents and Sri P. Laxmanarao (PW3) through

P.W.8, who is Principal Junior Civil judge, Bobbili, who recorded the 164

Cr.P.C. statements of P.Ws.1 to 3, and later after completion of investiga- tion, filed charge sheet against the accused.

6.This being a Special Court, the case has taken cognizance for the offence by my predecessor for the offence under Sections 354-B, 506(2) IPC under Section 10 of The Protection Of Children from Sexual Offences Act, since the Prosecutrix is a minor girl aged 8 years, which falls under Special

Act “The Protection Of Children from Sexual Offences Act ( w.e.f.

14.11.2012), against the accused.

7.After apprehension of the accused, and upon consideration, a charge is framed under sections 354-B IPC and 506(2) IPC and under sec- tion 10 of The Protection Of Children from Sexual Offences Act, 2012, against the accused. Accused abjured the guilt and claimed to be tried.

8.To substantiate the accusation, the prosecution in all, examined

P.Ws.1 to 9 witnesses and Exs.P.1 to P.10 documents were marked and

M.O.1 Compact Disc is marked.

9.After closure of the prosecution evidence, accused is examined under section 313 Cr.P.C. The plea of the accused is of total denial as stated in 313 Cr.P.C., examination. As accused could not be acquitted under

Section 232 Cr.P.C., he is required to enter into defence, but he stated that he has no defence witnesses.

10.Heard arguments from both sides.

11.Now the points for determination in this case are ; (1) Whether the accused outraged the modesty of victim girl who is a “Child” within the meaning of section 2(d) of Protection

Of Children from Sexual Offences Act,2012 ?

(2) Whether the accused outraged the modesty of victim girl by disrobing her and made sexual assault by using criminal force and thereby committed the offence punishable under section 354-B of IPC ?

(3) Whether the accused made any criminal intimidation by threatening the victim girl to cause death and thereby commit- ted an offence punishable under section 506(2) of I.P.C. ?

(4) Whether the made aggravated sexual assault on the victim girl who is a “Child” below 12 years as per section 9(m) of Pro- tection Of Children from Sexual Offences Act,2012, and 5 thus committed the offence punishable under section 10 of

Protection Of Children from Sexual Offences Act,2012 ?

12.POINT No.1 :

As per section 2(d) of Protection Of Children from

Sexual Offences Act,2012, the “child” means any person below the age of 18 years. Here, admittedly the victim girl is aged 8 years only and the in- vestigating officer also obtained Ex.P.3 Study Certificate of the victim girl from the Head Mistress of M.P.P., School, who is examined as P.W.7, wherein the victim girl was studying 3rd class and Ex.P.3 study certificate discloses that the victim girl (PW1) was born on 21.6.2007. Therefore, by the date of alleged offence which took place on 26.8.2014, she is aged 7 years two months only, and therefore, the victim girl is “Child” within the definition of section (2) of Protection Of Children from Sexual Offences Act,2012.

13.POINTS 2 TO 4 :

All the above points are inter-related and therefore, the same are answered simultaneously. As stated in para No.2, the victim girl deposed in the same lines before the Court. The victim girl also stated that she gave 164 Cr.P.C., statement before the Lady Magistrate, who is exam- ined as P.W.8, who is Principal Junior Civil Judge, Bobbili. The 164 Cr.P.C., statement of P.W.1 is marked as Ex.P.5. P.W.8 also deposed in her evidence that P.W.1 stated to her that “when she is playing with one Vikas and col- lecting tamarind under a tree near the school one Nimmaka Rajesh came there and took her into a room of the school and made sexual assault after undressing her and also removing his cloths and slept on her and that she raised cries and due to fear the said Rajesh ran away and the said Ranjesh threatened her to kill if she informs the same to any body, and later she wore her cloths and came back to the house”.

14The learned counsel for accused argued that P.W.1 gave exaggerated version before the Court as well as in 164 Cr.P.C., statement, but in the original 161 Cr.P.C., statement she did not state the facts what she stated before the Court or stated in 164 Cr.P.C., statement. P.W.1 who is a “Child” within the meaning of section 2(d) of Protection Of Children from

Sexual Offences Act,2012, who is aged 8 years herself deposed before the Court that when she examined in camera, after following the guide lines under section 37, since the trial is conducted in camera and as per the provi- sions of section 36, P.W.1 while giving evidence, did not see the accused and a curtain is placed and all precautions were taken by the Court while record- ing her evidence, and therefore she without any hesitation stated the entire 6 facts and she is not having mental or physical disability and she did not even take any interpreter or expert or help of her parents while giving evi- dence before the court. Likewise, the Magistrate recorded the 164 Cr.P.C., statement of the victim girl in camera. Therefore, the victim girl is able to tell the entire incident. Whereas the 161 Cr.P.C., statement was recorded by video-shooting in the presence of two women home guards and the SI of Po- lice and parents also and therefore, she might have not given full details of the facts in this case. P.W.1, who is victim girl herself admitted in cross ex- amination that she did not tell to police that accused removed his T.-Shirt and Nikker and not wore drawer, to the Police. She stated that she only nar- rated the incident to her parents and she told to the Lady Magistrate also of the same. Likewise, P.W.1, stated in cross examination that, she did not tell to police that the accused laid her on the floor and made naked and placed his penis (bulla) into her vagina (bulla as per words of P.W.1) and she also stated in a decent manner even without taking the help of the Court and stated that she did not state to the police that the accused asked him to caught hold of his penis (bulla as per words of P.W.1) and when she refused for the same the accused by force got the victim to caught his penis (bulla) into her vagina (bulla) and she got pain and weeping, the accused pressed her mouth . But P.W.1 deposed that she told the same to her parents. P.W.1 even went to extent of saying that she did not state to her parents, police, or

Magistrate that the accused after the incident has collected his cloths which

were already removed by him and kept under the arm-pit and ran way nakedly, but she told the same to her parents. Therefore, there is no hesita- tion to the court, to say, that P.W.1 is speaking truth before the Court and there is ring of Truth in the prosecution case. The sole testimony of P.W.1 it- self is sufficient in the present case, to bring home the guilt of the accused.

15The only lacuna with regard to recording of evidence of victim girl, b y the Magistrate is concerned, the Magistrate has recorded the evidence of victim girl in English but as per Section 26 of Protection Of

Children from Sexual Offences Act,2012, either the Magistrate or police as the case may be, shall record the evidence as spoken by “child”. There- fore, the statement of child has to be recorded in the language of the “Child” only as recorded by this Court, while giving evidence by victim girl.

Magistrate also recorded the statement of the victim girl in-camera and

therefore, for the said latches on the part of Magistrate, the evidence of

PW1 cannot be brushed out or looked suspiciously. There is no discrepancy or inconsistency in the evidence of P.W.1 who is victim girl, at any point of time and nothing is elicited in her cross examination to say that she is speak- ing false. P.W.1 herself admitted in cross examination that she did not state 7 certain facts before police, certain facts to the Magistrate as mentioned in detailed in above paragraphs. Therefore, when the evidence of P.W.1 is considered, she passed “Acid Test of Credibility” and therefore, the said evi- dence can be acted upon by the Court. The evidence of P.W.1 is reliable and trustworthy and there is no discrepancy in any material particulars for not accepting the same. The evidence of P.W.1 is conclusive evidence, pointing out the guilt of accused. Her evidence is not clouded with any grave suspicion and discrepant in any material aspects, and there is no doubt with regard to the trustworthyness of the witness. More over the accused has not given any explanation in 313 Cr.P.C., examination, why the evidence of

P.W.1, is to be discarded and there is no animosity for PW1, to depose against the accused and nothing is elicited in the cross examination of P.W.1.

Therefore, the evidence of PW1 also gives vent to the incident only.

16The evidence of P.W.1 is corroborated by the other evi- dence of other witnesses in the above matter. The father of the victim girl is examined as P.W.2, who deposed in his evidence 26.8.2014 at 5 p.m.,

P.W.1 returned to the house with frightening and himself and his wife asked why she is frightening and she did not give any reason. He deposed that 28.8.2014 at 5 or 5.15 p.m., when himself, his wife and P.W.1 were present in the house, accused came to his neighbours house. On seeing the ac- cused, P.W.1 again frightened and then they asked P.W.1 what happened and she narrated the entire incident what she stated the same before the

Court even. P.W.2 further deposed that he raised a dispute before elders viz., Hymavathi(not examined), Srinu (PW4), Venkatarao (not examined),

Laxmanarao (PW3), T.Suresh (not examined) who told that to report the mat- ter to police and thereupon he went to police station and gave Ex.P.1 report to the Police at 6 p.m., and at 6.30 p.m., or 7 p.m., police came to their house and recorded the statements of P.W.1, himself and his wife and also took videography while examining P.W.1 and after one month again, himself, his wife, P.W.1, and Laxmanarao gave 164 Cr.P.C., statements before Bobbili

Magistrate (PW8).P.W.2 in cross examination denied the suggestion

that he did not state to police that on hearing the sounds at well, the ac- cused left the place by taking his clothes by going nakedly out of the room as stated by P.W.1, to him. He also denied the suggestion that he did not state before the police, the elders told him that the accused 2 or 3 times spoiled the lives of the ladies and advised him to give report, to Police.

Therefore, nothing is suggested to P.W.1, to discredit his evidence and P.W.2 also supported to the evidence of P.W.1, in all material aspects.

17P.W.3 Sri P. Laxmanarao is a material witness in the present case, since he deposed that on the said date at about 5 or 5.30 p.m., 8 while he was coming on road and coming to the water tap present near the

M.P.P. School to wash his hands and legs. He heard cries of someone and then he immediately went and observed the accused running away nakedly by holding his cloths in his hand. P.W.3 further deposed in his evidence that he also told about the same to the elders and P.W.2 and 3 and others who tied the accused into a current pole in the village and all the villagers beat him. P.W.3 further deposed that the accused is of bad character and ac- cused married 3 or 4 ladies and removed their gold ornaments and broken their legs and hands and the accused is a cruel man. P.W.3 deposed in his cross examination that he is not an elder or village elder. Therefore, P.W.3 is a chance witness who witnessed the accused running away nakedly from the scene of offence, after the incident. P.W.1 also deposed that after the in- cident on hearing the cries, the accused threatened her to kill her if she re- veals the same to any one, and the accused ran away from the place nakedly by keeping his cloths in his armpit, which evidence can be accepted to be true, since P.W.3 also deposed that he saw the accused running nakedly.

18P.W.4 M. Srinviasa Rao, Ex Surpanch of the Village is ex- amined, who deposed that on 28.8.2014 at 6 p.m., while he was at his house, Smt. Hymavathi(not examined), Venaktarao(not examined) , Karu- vulu (P.W.5) were present and discussing about the village problems, P.W.2 who is father of the victim girl came to him and told about the incident hap- pened on 26.8.2014 and P.W.2 requested them to hold panchayat and fur- ther deposed that the accused is of bad character and used to mis-behave with ladies and on several times panchayats were held on several times about the misbehavior of accused and they also out casted the accused from the village previously but again at the instance of the mother of the ac- cused they allowed into village and they advised P.W.2, to give report to the

Police.

19P.W.4 Sri Mutaka Srinviasa Rao also admitted in cross ex- amination that the accused was beaten by tying him into a pole in the village and categorically deposed in cross examination that the said beating of ac- cused is for the reason that the accused has taken a girl from the village and removed her ornaments and lived with her for about one week and left her, for which the parents of the parents of girl Pillaka Devi reported to the panchayat and the said persons have tied the accused to a pole and beat him, which also happened on that date only. Therefore, the said beating of accused is not due to above incident of sexual assault against P.W.1 who is victim girl. P.W.4 also corroborated the evidence of P.W.3, in that aspect.

9 20Although bad character is irrelevant under the Indian Evi- dence Act, but as per section 14 of the Evidence Act, the bad character is also said to be relevant when the previous commission of the offences, by the accused is relevant within the meaning of section 14 of Evidence Act. Al- though the bad character of the accused is irrelevant for the purpose of de- ciding the case, even from the evidence of P.Ws.2 to 4, it can be said that the accused is of bad character only and involved in such type of offence i.e., assaulting woman previously also.

21P.W.5 Sri Arika Karuvulu also supported the evidence of

P.Ws.2 to 4, in the above matter, since he deposed in his evidence that on 28.8.2014 at about 6 p.m., when himself, P.W.3 and others were present in the house of P.W.4 Ex.-Surpanch and discussing about the village matters,

P.W.2 came there and narrated the incident happened on 26.8.2014 against his daughter, who is victim girl in the school and P.W.3 who was present there also stated that he witnessed the accused while running nakedly con- firming the above incident. He further deposed that there are several com- plaints against the accused in the village and told their helplessness and asked P.W.2, to give a report, to the Police. He also attested Ex.P.2scene ob- servation report and police observed the scene in their presence, which is a school room. Therefore, the evidence of P.Ws.2 to 6 who at one voice de- posed and there is no inconsistency in the evidence of P.Ws.2 to 5 on any as- pect and the evidence of P.Ws.2 to 5 is without any variance and deviance and consistent with each other’s evidence and corroborated with each other, as pointed out in the earlier paras.

22The evidence of P.W.6 Smt. Yenugula Mangalla, who is

Women Home Guard, deposed that on the instructions of investigating offi- cer (PW9), she videographed the statement while recording the statement of P.W.1, which is M.O.1 CD of the same and other women Home Guard viz.,

Vasantha (not examined) recorded the statement of victim girl, while she was videographed the same.

23The evidence of Investigating Officer Sri I. Gopi, Sub Insec- tor of Police, who is examined as P.w.9 is not discussed in this matter, since there are no latches in the investigation done by him and the only latches on the part of investigating officer is that he has mentioned the date as 29.8.2014. As seen from scene observation report and rough sketch of scene of offence, the date is mentioned as 29.8.2014 instead of 28.8.2014.

In cross examination he deposed that by mistake he mentioned the said date but as seen from 161 cr.P.C., statement the date is mentioned as 28.8.2014 only, and therefore, it can be said that by mistake only, he has put the wrong date on rough sketch or scene observation report and except the said 10 lathes, there are no latches in the prosecution case, for that reason only, the evidence of P.W.9 who is investigating officer, cannot be discarded.

24In the present case, the evidence is clear that the accused removed the cloths of victim girl who is child and also removed his cloths and made nude and asked PW1 to caught hold his penis and when she refused, he got caught his penis and put into her Vagina and therefore, the said facts comes within the meaning of section 7 of Protection Of Children from Sexual Offences Act and also under section 9(m) Protection Of

Children from Sexual Offences Act, of aggravated sexual assault, who is extracted as below.

25Section 7 of Protection Of Children from Sexual

Offences Act : Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is to commit sexual assault.

26Section 9(m) Protection Of Children from Sexual Of- fences Act, whoever commits sexual assault on a child below twelve years; or therefore, the accused is liable for punishment under section 10 Protec- tion Of Children from Sexual Offences Act.

27As per discussions made in earlier paras, there is no hesita- tion to come to conclusion that there is ring of truth in the prosecution case and there is no dubiousness to hold that the accused committed the heinous offence against the victim girl who is minor girl, hence, the prosecu- tion proved the guilt of accused beyond all reasonable doubt for all the charges leveled against the accused, and he is liable for punishment for the said charges.

28IN THE RESULT, accused is found guilty for the offence under Sections 354-B and 506 (2) IPC and under section 10 of Protection

Of Children from Sexual Offences Act,2012, and he is Convicted under section 235 (2) of Cr.P.C., for the said offences.

Dictated to the Stenographer, transcribed by her, corrected

and pronounced by me in Open Court, this the 12th day of March, 2015.

Sd/- K.V. Ramanaji Rao

Special Judge for trial of cases

under SCs & sTs (POA) Act, 11

Cum-IV Additional District

Judge, ,

FAC I Addl. Sessions Judge, Vizianagara m

29. When questioned with regard to the quantum of sentence, the accused stated that.

30. But considering the gravity of the offence and nature of offence which is heinous offence, no lenient view can be taken and more over as per

section 42 of Protection Of Children from Sexual Offences Act,2012,

when the accused is found guilty for the offence under 354-B IPC and also the offence under Protection Of Children from Sexual Offences Act,, the punishment should be given which is greater in degree and therefore, under the above circumstances, the accused is convicted under section 235(2) of Cr.P.C., for the offence under sections 354-B and 506(2) IPC and under section 10 Protection Of Children from Sexual Offences

Act,2012.

31 Accused is sentenced to under go RIGOROUS Imprisonment for a maximum period of seven (7) years and also to pay a fine of

Rs.1,000/- and in default of payment of fine he is ordered to undergo

simple imprisonment for one (1) month, for the offence under sec-

tion 354-B of IPC.

32Accused is sentenced to undergo RIGOROUS Imprisonment for a period of seven (7) years for the offence under section 506(2) of IPC.

33Accused is sentenced to undergo RIGOROUS Imprisonment for a period of seven (7) years and also to pay a fine of Rs.3,000/- and in default of payment of fine he is ordered to undergo simple imprison-

ment for three (3) months, for the offence under section 10 of Pro-

tection Of Children from Sexual Offences Act.

34It is further ordered that all the above sentences imposed against the accused shall run concurrently (simultaneously).It is further ordered that the remand period undergone by accused if any (i.e., from 19.12.2014 to till date is ordered to be set off under section 428 Cr.P.C.

35M.O.1 which is a compact Disc is ordered to be kept in

Record as it is a material piece of evidence.

Dictated to the Stenographer, transcribed by her, corrected

and pronounced by me in Open Court, this the 12th day of March,, 2015.

12

Sd/- K.V. Ramanaji Rao

Special Judge for trial of cases

under SCs & sTs (POA) Act, Cum-IV Additional District

Judge, ,

FAC I Addl. Sessions Judge, Vizianagaram

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Prosecution:- For defence:- NONE

P.W.1: xxxxx

P.W.2: Pendinti Sivaraju

PW3: Puvvala Lakshmana Rao

PW4: Mutaka Srinivasa Rao

PW5: Arika Karuvulu

PW6: Yenugula Mangamma, Home Guard

PW7: Nimmaka Kirimamma, Head Mistress

PW8: Smt. V.Lakshmi Rajyam, Principal Junior Civil Judge

PW9: Ippalavalasa Gopi, Sub Inspector of Police

DOCUMENTS MARKED

For Prosecution:-

Ex.P.1: Report given by P.W.2 to the Police dated 28.08.2014

Ex.P.2: Scene observation report dated 28.08.2014

Ex.P.3: Study certificate issued by P.W.7

Ex.P.4: Requisition sent by P.W.9 to P.W.8

Ex.P.5: 164 Cr.P.C. statement of Prosecutrix (PW1) recorded by P.W.8

Ex.P.6: 164 Cr.P.C. statement of P.W.2 recorded by P.W.8

Ex.P.7: 164 Cr.P.C. statement of L.W.2 recorded by P.W.8

Ex.P.8: 164 Cr.P.C. statement of P.W.3 recorded by P.W.8

Ex.P.9: Original FIR in Cr.No.26/2014 of Elwinpeta Police Station

Ex.P10: Rough sketch of the scene of offence.

For defence: NIL

M.Os Marked 13

M.O.1 : C.D. recorded by P.W.6

Sd/- K.V. Ramanaji Rao

Special Judge for trial of cases

under SCs & sTs (POA) Act, Cum-IV Additional District Judge,, FAC I Addl. Sessions Judge, Vizian agaram

Copy to the Hon’ble High Court of Andhra Pradesh, Hyderabad by way of C.D.

Copy communicated to :

1. The Director of Prosecutions, D.G. & I.G.Office Complex, Hyderabad.

2. The Addl. Public Prosecutor, Vizianagaram.

3. The Superintendent of Police, Vizianagaram.

4. The District Collector, Vizianagaram.

5. The accused.

IN THE COURT OF THE SPECIAL JUDGE FOR TRIAL OF CASES UNDER

S.Cs & S.Ts (POA) ACT –CUM- ADDL.DITRICT & SESSIONS JUDGE,

VIZIANAGARAM.

PRESENT: Sri T.Sreerama Murthy,M.A.LL.B.,

Special Judge for trial of Cases under S.Cs & S.Ts (POA) Act

-cum-Addl.District & Sessions Judge,

Vizianagaram.

Tuesday, this the 26th day of June, 2012.

SC ST Sessions Case No.14/2011.

1.Name of the Complainant: State represented by the Sub Divisional

Police Officer, Bobbili.

2.Name of the accused:: Jerripothula Jagadish son of Vasudevarao, 25 years, Gamella by caste, main road,

Gajapatinagaram 3.Charges: Under sections 3(1)(x) of SCs & STS

POA Act and 509 IPC.

4.Plea of accused: Not guilty.

5.Finding of the Judge: Accused is found not guilty for the offence

Under sections 3(1)(x) of SCs & STS POA Act and 509 IPC 6.Sentence or order : Accused are acquitted under section 235(1) of Cr.P.C., for the said charges.

7.Prosecution conducted by: Addl., Public Prosecutor, Vizianagaram.

8.Defence conducted by: Sri M. Vijaya Mohanarao, Advocate.

Vizianagaram.

This case was committed by the learned Judicial Magistrate of I

Class, Gajapathinagaram in P.R.C.10/2011 and after hearing the learned

Public Prosecutor on behalf of State and the learned Counsel appearing for the accused, the case having been stood over for consideration till this day, this

Court delivered the following:

J U D G M E N T

This case is arising out of the Charge sheet filed against the accused by Sub Divisional Police Officer, Bobbili in crime No.49/2011 before the Judicial Magistrate of I Class, Gajapathinagaram who took it on file as

P.R.C.No.10/2011 for the offences punishable Under section 3 (1((x) of Scs &

STS (POA) Act and 509 IPC.

2. After appearance of accused before the learned Magistrate and after hearing the Learned Additional Public Prosecutor and defence counsel and after going through the material available on record, the Learned -2-

Magistrate having come to a conclusion that the case is exclusively triable by

the Court of Sessions, has committed the same to the Court of Special Judge for trial of Cases under Scs & STS (POA) Act cum-Addl., District and Sessions

Court, Vizianagaram under section 209 (a) Cr.P.C.

3. After receipt of record, this Court numbered it as SCS & STs

Sessions Case No.14/2011.

4. The brief facts of the prosecution case are as under:

The accused is resident of Gajapathinagaram and caste by

Gamella, B.C., “B”. L.Ws.1 and 2 by name Manga and Balaram are residents of Vizianagaram and are living by running seat covers making shop at

Gajapathinagaram and they belongs to SC Madiga community. About one year ago the accused ordered L.W.1 Manga to prepare a tank cover for his

Pulsar motor cycle for Rs.100/- and Manga prepared the same and given it to the accused but the accused did not pay the said amount to them. On 14.7.2011 morning Balaram went to the house of accused and informed the parents of accused that the accused is due a sum of Rs.100/- and did not pay the same to them. On that day at about 12 noon the accused came to the shop of Manga and Balaram and abused them in filthy language. On 17.7.2011 morning Balaram again went to the house of accused and told to his parents about the high handed behaviour of the accused. On that the accused came to their shop at about 9 a.m., and abused Balaram as Madiga Lanja

Kodaka. Manga protested the acts of the accused, upon which the latter picked up his chapel from his foot and threatened the former that he would beat her. L.Ws.3 to 6 by name Althi Krishna, Dasara Narsingarao , Kommu

Bangaru Raju and Tholeti Nukaraju have witnessed the incident.

On a report given by Manga the S.I. of Police, Gajapatinagaram registered a case in crime No.49/2011 under section 3 (1)(x) of SCs & ST (POA)

Act and submitted the copies of FIR to all concerned. The S.D.P.O., Bobbili took up investigation as per proceedings of S.P., Vizianagaram dated 17.7.2011 and examined the witnesses and arrested the accused on 11.8.2011 and sent him to the court for judicial custody and after completion of investigation he laid charge sheet against the accused under the above said sections of Law.

5. After appearance of accused before this court he engaged a

Counsel to defend him. After hearing the learned Additional Public Prosecutor and defence Counsel and after going through the material available on record, charges Under section 3 (1)(x) of SCs & STs (POA) Act and 509 IPC were framed against the accused and when the same were read over and explained to him in Telugu, he pleaded not guilty and claimed to be tried.

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6. To prove prosecution case, the prosecution examined P.Ws.1 to 10 and got marked Exs.P.1 and P.6

7. After closure of prosecution side evidence, the accused was examined under section 313 Cr.P.C., for which he denied the incriminating circumstances appearing against him in the evidence adduced on behalf of prosecution. The accused did not adduce any oral or documentary evidence on his behalf.

8. Now the point that arises for consideration is whether the prosecution is able to bring home the guilt of the accused beyond all reasonable doubt so as to convict him for the offence charged ?

9. Point : The accused is charged under sections 3 (1)(x) of

SCs & STs (POA) Act and 509 IPC on the ground that on 14.7.2011 he not being the member of S.C. or S.T. came to the shop of P.Ws.1 and 2 and abused them in the name of their caste and picked up a chappel from his foot and threatened PW1 that he would beat her with an intention to insult her modesty.

P.Ws.1 and 2 are the alleged victims and P.Ws.3 to 6 are the alleged to have witnessed the incident and P.W.7 is the then Tahsildar,

Vizianagaram who issued caste certificates of P.Ws.1 and 2 and P.W.8 is the then Tahsildar, Gajapatinagaram who issued the caste certificates of accused and PW9 is the then Sub Inspector of Police, Gajapatinagaram who registered the crime basing on the report given by PW1 and PW10 is the then

S.D.P.O.,Bobbili who investigated into the matter and filed charge sheet against the accused.

10.Besides the oral testimony of the above said witnesses the prosecution got marked the report given by PW1 to police as Ex.P.1, 161

Cr.P.C., statement of P.W.2 as Ex.P.2; letter issued by PW7 as Ex.P.3 ; letter issued by P.W.8 as Ex.P.4; printed FIR as Ex.P.5 ; rough sketch of the scene of offence as Ex.P.6.

Basing on the oral and documentary evidence placed on record the learned A.P.P. has contended that the evidence of P.Ws.1 and 2 is fully corroborated by the evidence of P.Ws.4 to 10 on material circumstances and as such the accused is liable to be convicted for the offence charged.

As against the above said contention, the learned Advocate for accused has contended that PW1 is the wife of PW2 and they are very much interested in prosecution case and as a counter blast to the case filed by accused against P.W.2 his wife PW1 gave a false complaint to police and P.ws.4 to 6 are the close relation and caste men of P.Ws.1 and 2 and there are contradictions in their evidence on material circumstances and as their evidence does not inspire confidence of the Court to believe the prosecution -4- case, the accused is entitled to the benefit of doubt and to be acquitted for the offences charged.

11In support of his contention, he relied on a decision reported in Vennapusa Gangireddy alias Sadhu and others Vs. State of A.P., wherein it is held:

“Provisions of Act are given overriding powers over other laws.

Punishment prescribed is serious and heavy. Therefore, standard of proof required in case of this type is very heavy. Mere allegations of two or three witnesses belonging to one group cannot be trusted, that too when their evidence is ridden with contradiction. Evidence of P.Ws.1 to 4 is doubtful as to accused throwing their musical instruments and locking temple. Accused are entitled to benefit of doubt. Hence, acquitted. Conviction and

Sentence recorded by trial court set a side. Appeal allowed.

Basing on the principles laid down in the decision cited supra, as the punishment prescribed under the provisions of SC & ST Act is serious and heavy the standard of proof required in such case is also very heavy.

12.Ex.P.1 is the report given by P.Ws.1 and 2 to the police,

Gajapathinagaram and as per its contents. On 14.7.2011 at 12 noon the accused came to the shop of P.Ws.1 and 2 and abused them in filthy language and threatened them with dire consequences. It also further reveals that on 17.7.2011 at 9 a.m., the accused came to P.Ws.1 and 2 and abused them in the name of their caste.

P.Ws.1 and 2 have not given any explanation as to why they did not lodge a report against the accused when they were abused by him in the name of their caste on 14.7.2011. It also does not disclose as to the place of incident that alleged to have taken place on 17.7.2011 and the name of witnesses who alleged to have witnessed the said incident.

But coming to their evidence PW1 has stated that on 17.7.2011 her husband went to the house of accused and informed his parents about the amount due by accused and on the same day at about 12 noon the accused came to their shop and had an altercation with them and abused them in the name of their caste and threatened them with dire consequences and one Srinu, Nookaraju, Bangarraju and Krishna came to their rescue and subsided the matter, chastised the accused and sent him away.

In the evidence of P.W.2 he has stated that on 17.7.2011 at about 11 or 12 a.m., he went to the house of accused and asked the parents of accused to pay the amount due upon which they told that they would pay the amount and on the same day at about 12.30 a.m., the accused came to their shop and abused them in the name of their caste and threatened to beat him -5- with a chappal upon which his wife came to his rescue and protested the accused about his high handed behaviour and that Krishna, Nookaraju,

Bangarraju and Srinu came to the scene and subsided the matter.

13.The above said evidence of P.Ws.1 and 2 is quite contra to the contents of Ex.P.1 report. In Ex.P.1 report they have simply stated that on 17.7.2011 at 9 a.m., the accused came to them and abused them in the name of their caste. Except that it does not disclose about the accused threatening

P.Ws.1 and 2 with dire consequences or attempting to beat P.W.2 with a chapel or the presence of alleged witnesses by name Krishna, Nookaraju,

Bangarraju and Srinu. In the cross examination of P.W.1 she has stated that on 17.7.2011 at about 12.30 hours the incident took place at their shop but not at 9 a.m., as mentioned in Ex.P.1. Ex.P.1 report was given at the earliest point of time and the same is signed by P.ws.1 and 2 and they alleged to have given the same few hours after the incident.

As I have already stated supra in the said report it is clearly mentioned that at 9 a.m., on 17.7.2011 the accused came to P.Ws.1 and 2 and abused them in the name of their caste. If the evidence of PW1 is taken into consideration no incident did take place at 9 a.m., on 17.7.2011 as mentioned in Ex.P.1. As per the evidence of PW2, that on 17.7.2011 at about 11 or 12 a.m., he went to the house of accused and asked the parents of accused to pay the amount due and on the same day at 12.30 a.m., the accused came to their shop and abused them in the name of their caste.

Ex.P.1 is silent about P.W.2 visiting the house of accused at 11 or 12 a.m., on 17.7.2011. If the evidence of P.Ws.1 and 2 is taken to be true no incident did take place at 9 a.m., on 17.7.2011. If that be so the contents of

Ex.P.1 must be false.

P.W.3 is one Krishna who alleged to have witnessed the incident.

PW1 has stated that Krishna, Srinu, Bangarraju came to their rescue and subsided the matter but for the reasons best known PW3 did not support the prosecution case. He simply stated that he does not know anything about this case and the police did not examine him.

P.W.4 is one D.Narasingarao and as per his evidence that on 17.7.2011 at about 12 noon there was an altercation between the accused and

P.Ws.1 and 2, upon which he interfered in the galata and subsided the matter and sent away the accused and two to three persons came there to subside the matter but he does not know their names.

14.As seen from the evidence of P.Ws.1 and 2 that P.W.4

Narasingarao has witnessed the incident and came to their rescue. P.W.4 did not depose about the accused abusing P.Ws.1 and 2 in the name of their caste or threatening them with dire consequences or attempting to beat P.W.2 with a -6- chappal. He simply stated that there was an altercation in between the accused and P.Ws.1 and 2 and he interfered and subsided the matter. The evidence of this witness is no way helpful to the prosecution to believe it’s case.

P.W.5 is one Bangarraju and as per his evidence about one year ago on one day at about 9 a.m., there was an altercation in between the accused and PW2 and on hearing the alaram he went there and in his presence the accused refused to pay amount due to PW2 and abused him in the name of his caste and when PW1 came there the accused threatened her to beat them with a chappal. The evidence of this witness is also quite contra to the evidence of P.Ws.1 and 2. In the evidence of P.Ws.1 and 2 they have stated that the incident took place at 12 noon but not at 9 a.m. P.W.1 did not depose about the accused attempting to bet her with a chappal. P.W.2 has deposed that the accused threatened to beat him with a chapel upon which his wife came to his rescue and protested the accused of his high handed behaviour.

As the evidence of PW5 is quite contra to the evidence of P.Ws.1 and 2 much reliance cannot be placed on his evidence to believe the prosecution case.

P.W.6 is one Nookaraju and his evidence reveals about one year ago at 9 or 10 a.m., a galata took place in between the accused and PW2 and in the said galata the accused abused PW2 in the name of his caste and PW1 came and demanded the accused to pay the amount due upon which the accused attempted to bet her with a chappal.

The evidence of this witness is also quite contra to the evidence of

P.Ws.1 and 2. As per the evidence of P.Ws.1 and 2 the incident took place at 12 noon and as per the evidence of PW2 the accused attempted to beat him with a chappal. P.Ws.1 and 2 did not depose about the accused making an attempt to beat PW1 with a chappal. Since there is no consistency in the evidence of this witness with that of the evidence of P.Ws.1 and 2 no credence can be given to the evidence of this witness also.

15.The learned Counsel for accused has contended that P.Ws.4 to 6 are closely related to P.Ws.1 and 2 and they were planted to support the prosecution case and as the adjacent shop owners of P.Ws.1 and 2 were not cited and examined to support the prosecution no credence can be given to the evidence of P.Ws.4 to 6 and the prosecution case is to be viewed with suspicion. As seen from the cross examination of P.W.1 the shop of L.W.3

Krishna situates near their shop and one Appalanaidu, Trinadha, Veera

Venkata Sai are having their respective shops near their shop.

L.W.3 Krishna is examined as P.W.3 and he denied to have knowledge about the incident of this case. For the reasons best known, the investigating officer did not cite Appalanaidu, Veera Venkata Sai and Trinadha as witnessed to this case.

-7- 16P.W.1 is the Investigating Officer and in his evidence he has stated that as per information given by P.Ws.1 and 2 he examined P.Ws.4 to 6.

As per the evidence of P.W.4 that he is resident of Visakhapatnam and as per his evidence, P.W.5 is resident of Bobbili and as per the evidence of P.W.6 he is resident of Vizianagaram. The adjacent shop owners of P.Ws.1 and 2 are the best witnesses to speak about the incident. As seen from the evidence of

P.Ws.1 and 2 on hearing the alaram the shop owners and others came to the scene but for the reasons best known they have not cited to support the case of prosecution.

To prove that PW6 is a resident of Kuppili Veedhi of Vizianagaram, the accused filed voters card, during his 313 Cr.P.C., examination. As seen from the contents of voters card PW6 is resident of Kuppili Veedhi of

Vizianagaram and P.Ws.1 and 2 are also residents of Kuppili Veedhi,

Vizianagaram and all of them belongs to S.C. Madiga caste.

P.W.5 is one Bangarraju and as per his evidence he is resident of

Bobbili but as seen from his voters card he is resident of Kuppili Veedhi,

Vizianagaram.

As P.Ws.4 to 6 belongs to the caste of P.ws.1 and 2 and as P.Ws.5 and 6 belongs to Kuppili Veedhi of Vizianagaram I am of the considered opinion that they were planted in this case at the instance of P.Ws.1 and 2 to speak about their case.

17.In a case of this nature, it is mandate on the prosecution to prove that the accused is not the member of S.C. or ST and that the victims are the members of S.C., or S.T. and that the accused intentionally knowing that the victims belongs to a member of S.C., insulted or intimidated them as being members of Schedule caste.

18.Coming to the case on hand, the P.Ws.1, 2, 4 and

P.W.6 did not speak about the caste of accused. In the cross examination of

P.W.1 she has stated that they had no prior acquaintance with the accused and the accused does not know about their caste. P.W.2 has stated that the accused is not aware of their caste and they too does not know about the caste of accused. P.Ws.4 to 6 did not depose about the caste of accused. As per

P.W.7 he issued caste certificates of P.ws.1 and 2 vide Ex.P.3. In his cross examination he has stated the caste certificates would be in a format and after the M.R.I., and V.R.O., ascertains the caste and makes an endorsement, he would put his signature in the caste certificate.

P.W.8 is Tahsildar, Nellimarla and as per his evidence that

Jagadish(A.1) belongs to Gamella by caste which is B.C.. In his cross examination he has stated that he did not issue any certificate in the format -8- with regard to the caste of accused and Ex.P.4 does not contain the father’s name of the person mentioned therein.

19.In a decision in State of Karnataka Vs. Irappa Dhareppa

Hosamani in 2001 CRI.L.J. 3655 wherein it is held in paras 10 and 11 :

In the instant case, although some material is produced to show that

P.ws.3, 4 and 6 are members of Scheduled caste, from the evidence, it does not disclose that accused knew about that fact prior to or at the time of the incident. In the absence of knowledge on the part of the accused that the victims are members of Scheduled Caste, the question of intention to insult or intimidate the victims as members of Scheduled

Caste does not arise at all. Thus, there has been a total failure on the part of the prosecution to prove all the ingredients of Sec.3(1)(x) of the

Act as observed above. Therefore, in my view, the trial court was justified in holding that the accused is not guilty of the offence punishable under Sec.3(1)(x) of the Act.

As seen from the principles laid down in the decision cited supra, if the accused had no knowledge about the caste of the victims the question of intention to insult or intimidate the victims as members of S.C. does not arise.

20 Coming to the case on hand, P.W.2 has clearly stated that the accused had no knowledge about their caste and they too had no knowledge about the caste of accused. Under such circumstances it cannot be said that the accused abused them in the name of their caste.

In a decision in Kothapalli Sunita Vs. State of A.P., in 2003(1) ALD

Crl.472 where in it is held:

To bring out an offence under section 3 (1)(x) of SC.C. & S.T Rule 7 framed under section 23 of the Act for conducting the investigation is mandatory and it has to be strictly complied with failing which the entire trial gets vitiated.

Coming to the case on hand, the prosecution has not filed the sanction orders alleged to have been issued by Superintendent of Police, authorizing P.W.10 to investigate into the matter.

As the evidence of P.Ws.1, 2, 4 to 6 is not consisting and corroborating with each on material circumstances and as the said witnesses are closely related and are very much interested in prosecution case and as the investigating officer did not examine the immediate neighbours of shop of PW2 to speak about the case and as P.ws.1 and 2 have clearly sated that the accused does not know their caste and they too did not know the caste of accused, I am of the considered opinion that the prosecution has miserably -9- failed to prove it’s case beyond all reasonable doubt so as to convict the accused for the offence charged.

21 In the result, the accused is found not guilty for the offence punishable under sections 3(1) (x) of S.Cs. & S.Ts.(POA) Act and under section 509 IPC and he is acquitted under section 235(1) of Cr.P.C., for the said charges. The bail bonds if any of accused shall stand cancelled and he is set at liberty. Unmarked property if any shall be destroyed after appeal time is over.

Dictated to the Personal Assistant, transcribed by her,

Corrected and pronounced by me in open court, this the 26th day of June, 2012. .

Sd/- Sri T.Sreerama Murthy,

Special Judge for trial of Cases under S.Cs

& S.Ts (POA) Act-cum-Addl. District & Sessions

Judge, Vizianagaram.

Appendix of evidence

Witnesses Examined.

For Prosecution:-For Defence:- PW.1 : Nandipalli MangaNone PW.2 : Nandipalli Balaram PW.3 : Althi Krishna PW.4: Dasari Narasinga Rao PW.5: Kommu Bangaru Raju PW.6: Tholeti Nukaraju PW.7: D.Laxma Reddy PW.8: Smt G.Jayadevi PW.9: N.V. Prabhakara Rao PW.10: T.Mohan Rao

DOCUMENTS MARKED

For Prosecution: Ex.P.1: Report given to police by PW.1 Ex.P.2: 161 Cr.P.C statement of PW.3 dt.20.7.2011 Ex.P.3: Letter dt.1.8.2011 by Tahsidlar, VZM to SI, GPM>

Ex.P.4: Letter dt.3.8.2011 by Tahsildar,to the S.H.O. Gajapathinagaram Ex.P.5: F.I.R. in crime No.49/2011 Ex.P.6: Rough sketch of the scene of offence. For Defence: Nil M.Os. Marked : Nil.

Sd/- Sri T.Sreerama Murthy

Special Judge for trial of Cases under S.Cs & S.Ts

(POA) Act-cum-Addl. District & Sessions Judge, Vizianagaram.

IN THE COURT OF THE SPECIAL JUDGE FOR TRIAL OF CASES UNDER S.Cs &

S.Ts (POA) ACT –CUM- ADDL.DITRICT & SESSIONS JUDGE, VIZIANAGARAM.

PRESENT: Sri T.Sreerama Murthy,M.A.LL.B.,

Special Judge for trial of Cases under S.Cs & S.Ts (POA) Act

-cum-Addl.District & Sessions Judge, Vizianagaram.

Tuesday, this the 19th day of June, 2012.

SC ST Sessions Case No.13/2011.

1.Name of the Complainant: State represented by the Asst. Superintendent

Of Police, Parvatipuram Sub Division,

Parvatipuram.

2.Name of the accused:: 1. Sanapathi Udayasekhar Patrudu

Son of Ramachandra Patrudu, 35 years, Kapu, Vice Surpanch, Madalinga

Village, Komarada Mandal.

2. Sanapathi Ramachandra Patrudu

Son of Late Laxminarayana Patrudu, 60 years, Kapu, Ex.Xarpanch,

Madalinga village, Komarada(M) 3.Charges: Under sections 3(1)(x) of SCs & STS

POA Act IPC 4.Plea of accused: Not guilty.

5.Finding of the Judge: Accused are found not guilty for the offence Under sections 3(1)(x) of SCs & STS POA Act 6.Sentence or order: Accused are acquitted under section 235(1) of Cr.P.C., for the said charges.

7.Prosecution conducted by: Addl., Public Prosecutor, Vizianagaram.

8.Defence conducted by: Sri A.Harish, Advocate.

Vizianagaram.

This case was committed by the learned Addl. Judicial Magistrate of I

Class, Parvatipuram in P.R.C.6/2010 and after hearing the learned Public Prosecutor on behalf of State and the learned Counsel appearing for the accused, the case having been stood over for consideration till this day, this Court delivered the following:

2 of 10

J U D G M E N T

This case is arising out of the Charge sheet filed against the accused by Assistant Superintendent of Police, Parvathipuram Sub Division, Parvathipuram in crime No.62/2009 before the Additional Judicial Magistrate of I Class, Parvathipuram who took it on file as P.R.C.No.6/2010 for the offences punishable Under section 3 (1((x) of Scs & STS (POA) Act and 506(2) IPC.

2. After appearance of accused before the learned Magistrate and after hearing the Learned Additional Public Prosecutor and defence counsel and after going through the material available on record, the Learned Magistrate having come to a conclusion that the case is exclusively triable by the Court of Sessions, has committed the same to the Court of Special Judge for trial of Cases under Scs & STS (POA) Act cum-Addl., District and Sessions Court, Vizianagaram under section 209 (a) Cr.P.C.

3. After receipt of record, this Court numbered it as SCS & STs Sessions

Case No.13/2011.

4. The brief facts of the prosecution case are as under:

On 27.8.2009 at about 12.00 hours L.W.15 Aguru Kasamma visited Madalingi village and convened a meeting at Rama Mandiram and called the surpanch Vandrasi Subhadra, Vice Sarpanch Senapathi Udaya Sekhar Patrudu and other villagers. While L.W.1 K. Somulamma and other villagers were representing their grievances to the Tahsildar, KOmadara, A.1 and A.2 who were present in the meeting have intervened and stated that the S.Ts are not concerned with their panchayat and they have no power to question about the developmental activities done in the village and abused them by touching their caste as Konda Lanja

Kodukullara and Kodu Lanja Kuthurllara and also uttered that A.1 is having power and they can do anything.

On a report given by Somulamma and others the S.I. of Police, Komarada registered a case in crime No.62/2009 under section 3 (1)(x) of SCs & STs (POA) Act and submitted the copies of FIR to all concerned. The superintendent of Police,

Vizianagaram appointed the Assistant Superintendent of Police, Parvatipuram as

Investigating Officer to investigate into the matter. During the course of investigation 3 of 10 he visited the scene of offence, examined the witnesses and recorded their statements and after completion of investigation the Assistant Superintendent of Police,

Parvatipuram filed charge sheet against the accused under the above said sections of

Law.

5. After appearance of accused before this court they engaged a

Counsel to defend them. After hearing the learned Additional Public Prosecutor and defence Counsel and after going through the material available on record, charge

Under section 3 (1)(x) of SCs & STs (POA) Act was framed against the accused and when the same was read over and explained to them in Telugu, they pleaded not guilty and claimed to be tried.

6. To prove prosecution case, the prosecution examined P.Ws.1 to 10 and got marked Exs.P.1 and P.2

7. After closure of prosecution side evidence, the accused were examined under section 313 Cr.P.C., for which they denied the incriminating circumstances appearing against them in the evidence adduced on behalf of prosecution. The accused did not adduce any oral or documentary evidence on their behalf.

8. Now the point that arises for consideration is whether the prosecution is able to bring home the guilt of the accused beyond all reasonable doubt so as to convict them for the offence charged ?

9. Point : The accused are charged under section 3 (1)(x) of SSs & STs (POA) Act on the ground that on 27.8.2009 at about 12 noon a meeting was held at

Rama Mandiram of Madalinga village in the presence of Tahsildar, Komarada and while Somulamma and other villagers were representing their grievances A.1 and A.2 not being the members of SC or ST caste intervened and questioned the propriety of

Somulamma and others in making representations and abused them in the name of their caste.

10.To prove prosecution case, the investigating officer has cited as many as 18 witnesses, out of whom the learned A.P.P. has examined 10 witnesses and got marked Exs.P.1 and P.2.

P.Ws.1 to 9 are the alleged eye witnesses to the incident proper and out of them P.Ws.1 to 6 are the alleged victims. P.W.7 is the then Tahsildar in 4 of 10 whose presence the accused alleged to have abused P.Ws.1 to 6 and P.W.8 in the name of their caste. P.W.9 is the then Village Revenue Officer who alleged to have accompanied the Tahsildar to the scene and who alleged to have witnessed the incident.

Basing on the evidence placed on record the learned A.P.P., has contended though there are some discrepancies in the evidence of P.Ws.1 to 9, there is general agreement as to the material circumstances in their evidence and when the same is taken into consideration it amply suggests that the accused abused P.Ws.1 to 6 in the name of their caste and as such they are liable to be convicted for the offence charged.

As against the said contention the learned Advocate for the accused has contended that there is no consistency in the evidence of P.Ws.1 to 9 on material circumstances and some of the alleged victims did not depose about the abusive words alleged to have been used by the accused, and as the Tahsildar and

V.R.O., did not depose anything wrong against the accused, the benefit of doubt shall be given to them and they shall be given to them and they shall be acquitted for the offences charged.

11In support of his contention, he relied on a decision reported in

Vennapusa Gangireddy alias Sadhu and others Vs. State of A.P., wherein it is held:

“Provisions of Act are given overriding powers over other laws.

Punishment prescribed is serious and heavy. Therefore, standard of proof required in case of this type is very heavy. Mere allegations of two or three witnesses belonging to one group cannot be trusted, that too when their evidence is ridden with contradiction. Evidence of P.Ws.1 to 4 is doubtful as to accused throwing their musical instruments and locking temple. Accused are entitled to benefit of doubt. Hence, acquitted.

Conviction and Sentence recorded by trial court set a side. Appeal allowed.

Basing on the principles laid down in the decision cited supra, it has to be seen whether the evidence of P.Ws.1 to 6 and P.W.8 is sufficient to base a conviction of the accused for the offence charged.

5 of 10

P.W.1 is one Somulamma and in her evidence she has stated that she belongs to Jatapu by caste which is S.T., and two years ago on one day at about 10 a.m., the M.R.O., came to their village and she asked the M.R.O., about her pension, upon which A.1 protested her as to whose money she would swallow and also questioned her as to why they are asking the M.R.O., about the pension and pounced upon her to beat, upon which she gave a report to the police and Ex.P.1 is the said report.

P.W.2 is one Savitri and in her evidence she has stated that about two years ago on one day at about 12 noon a meeting was held at Ramalayam in the presence of M.R.O., and they all went to the meeting and told the M.R.O., to issue ration cards and to sanction pensions, upon which, both the accused protested them as to why they are making such demands to the M.R.O. The surpanch was also present by then and later the M.R.O., left the place and the accused abused them in the name of their caste and they went to Komarada and gave a report to Police.

One Chellamma, Madhavarao and Meenamma are examined as P.Ws.3 to 5 respectively. In the evidence of P.W.3 she has stated that about two years ago at noon time the incident took place at Rama Mandiram and at that time the ASI was present and they have asked the ASI and M.R.O. about the allotment of house sites and for issuance of ration cards, pensions and other things upon which the accused protested and told them not to make such demand.

P.W.4 has stated when M.R.O. and some other officials came to their village and were sitting at Rama Mandiram they made representation for issuance of ration cards and to provide other benefits, upon which the accused protested and told them not to make such demand.

P.W.5 has stated that when the M.R.O. was holding a meeting at Rama

Mandiram at 12 noon they made a representation to the MRO for ration cards, pensions, roads and drainages etc., upon which, the accused protested them not to make demand and after the MRO left their village they gave written report to the police.

One K. Kesavarao is examined as P.W.6 and in his evidence he has stated that when the MRO held meeting near Rama Mandiram they made a 6 of 10 representation to him for issuance of ration cards, pensions and other things upon which the accused protested them and abused them in the name of their caste.

One K.Venkataramana is examined as P.W.8 and in his evidence he has stated that on 27.8.2009 the M.R.O., came to their village and when they were at

Ramalayam they all went and told the MRO about their difficulties and needs upon which both the accused protested them not to make such demands and when a galata took place the MRO left that place and thereafter the accused abused them in the name of their caste.

12Though the above said witnesses are the alleged victims there is no consistency in their evidence about the alleged abuses made by the accused to them in the name of their caste. P.Ws.1, 3, 4 and 5 did not depose about the abuses made by accused in the name of their caste. P.Ws.2, 6 and P.W.8 have only stated that the accused abused them in the name of their caste.

If really, P.Ws.1 to 6 and 8 are true in their contention they would have clearly stated that the accused abused them in the name of their caste.

But as I have already stated supra, P.Ws.1, 3 to 5 did not depose about the abuses made by accused in the name of their caste.

13In a decision in Budapap and others V/s. State of A.P.

represented by Public Prosecutor, High Court of A.P. Hyderabad and another in 2007 (2) ALT (Crl) 106 (AP) wherein it is held :

In order to attract the said provisions there must be an intention to humiliate a member of the schedule caste or a schedule tribe. Here, in the instant case, the report does not disclose any such intention on the part of the petitioners to humiliate or insult the caste of the 2nd respondent. Moreover, there is no specific allegation as to who used those abusive words and he simply stated all of them went and abused in the name of his caste. It is a bald allegation as contained in Gare Yesobu and other’s in 2005 (1) ALT (Crl) 213. In that case also bald allegations are made against the accused stating that they used the offending words.

On such facts, my learned brother justice C.Y. Somayajula held that such allegations do not attract the offence under section 3(1) (x) of the 7 of 10

Act and that prosecution on such allegations is a clear abuse of process of law. In view of the cited decisions of this court and considering the context in which the incident took place I am of the considered view that the provisions of section 3(1) (x) of the Act do not attract in their case.

In view of the principles laid down in the decision cited supra, in order to attract the provisions of section 3 (1)(x) of SCs & STs (POA)

Act there must be clear and cogent evidence to prove that the accused had an intention to humiliate P.ws.1 to 6 and 8 and having such intention they have abused them in the name of their caste in public view.

P.Ws.1 to 6 did not depose about the caste of accused and have also not stated that the accused not being the member of SC or ST abused them in the name of their caste within public view with an intention to humiliate them.

The evidence of P.ws.1 to 6 and 8 reveals that when the Tahsildar and his men came to their village and were holding a panchayat they all made representation to them to provide pensions and other benefits upon which the accused protested them.

P.W.7 is the then Tahsildar and P.W.9 is the then VRO, they are material witnesses in this case. P.W.7 has stated that in the year 2009 some of the villagers of Madalingi gave a written representation for their civic amenities upon which he went to the village and made a enquiry and called both the parties and while he was making enquiry some of the villagers told him that the roads and drainages were not laid and there is no electricity supply upon which he asked the surpanch of the village about the representations made by the villagers and the surpanch told him that nobody approached him with the demands. He further stated that A.1 was the vice surpanch and he too was present in the said meeting and in their presence the accused did not abuse P.Ws.1 to 5 in the name of their caste for making such demands.

In the evidence of PW9 he has stated that on 27.8.2009 at about 10 to 11 a.m., he along with P.W.7 went to Madalingi village and while they were sitting at

Rama Mandiram, people gathered there and some altercation took place in between the persons gathered and some persons asked the panchayat members about their amenities and as there was a commotion the MRO and himself left that place and except that nothing has happened there.

8 of 10 14When the above said evidence of P.Ws.7 and 9 is taken into consideration it amply suggests that when PWs.1 to 6 and some others made a representation to the Tahsildar for providing amenities the surpanch, A.1 and A.2 and other panchayat members told them not to make such representation, and that A.1 and A.2 did not abuse P.Ws.1 to 6 in the name of their caste.

15The learned counsel for accused has contended that there exists enmity in between the accused and P.Ws.1 to 6 and as the accused belongs to Telugudesem party and P.Ws.1 to 6 belongs to Congress party the present case is foisted and as such the accused are entitled to be acquitted for the offence charged.

The evidence on record reveals that the accused belongs to Telugudesem party whereas P.Ws.1 to 6 belongs to congress party. In the cross examination of PW1 she has stated that about ten years ago the accused filed a case against her son and the said case was ended in compromise and there is a fish tank in their village and the persons belonging to the above political parties are disputing for the same. In the cross examination of P.W.2 she has stated that about 10 years ago a case was filed by the accused against her husband and 14 others and the said case was ended in compromise.

P.W.4 has stated that there is a tank in their village and for catching fish there are disputes in between them and the accused and the said matter is pending before the Honourable High Court.

P.W.6 has stated that in the year 1995 a case was filed by the accused against his father and others and his father and others attended the court in the said criminal case.

16In view of the said evidence it is clear that there exists political rivalry in between the parties and the parties are litigating for a fish tank since long.

9 of 10

In a decision State of Gujrat Vs. Ansuyaben Vanilal Patel in 1999 CRI.L.J. 557 (Gujrat High Court) wherein it is held :

“When there exists animosity between the complainant and other witnesses and accused and when there is delay in lodging FIR, and when evidence of witnesses found un reliable and discrepant the accused are entitled to be acquitted.

17Coming to the case on hand there exists enmity in between the parties and there is no consistency in the evidence of P.Ws.1 to 6and 8 on material circumstances and their evidence is not supported by the evidence of P.Ws.7 and 9.

Hence, in view of the principles laid down in the decision cited supra much reliance cannot be placed on the evidence of P.Ws.1 to 6 and P.W.8 to base a conviction of the accused for the offence charged.

The prosecution has not filed the caste certificates of the accused as well as P.Ws.1 to 6 and 8 to prove that P.Ws.1 to 6 and 8 belongs to Jatapu which is S.T., and the accused does not belongs to S.C., or S.T., community. Though in the charge sheet it is simply stated that the Superintendent of Police has issued proceedings appointing the A.S.P. of Police, Parvatipuram to investigate into the matter, the said proceeds are not filed into Court. Though P.Ws.1 and 11 others gave a report to police on 31.8.2009 they have not given any explanation as to why they did not lodge the said report with police immediately after the alleged incident i.e., on 27.8.2009.

In Ex.P.1 report the complainant did not disclose about the date, time and place of offence. As there is delay in lodging the report and as the said delay is not properly explained and there exists enmity in between the parties and as there is in consistency in the evidence of P.Ws.1 to 9 on material circumstances and as the prosecution did not file the caste certificates and proceedings alleged to have been issued by the Superintendent of police authorizing the A.S.P., to investigate into the matter I am of the considered opinion that the prosecution has miserably failed to 10 of 10 prove it’s case beyond all reasonable doubt so as to convict the accused for the offence charged.

18. In the result, A.1, and A.2 are found not guilty for the offence punishable under section 3(1)(x) of S.Cs. & S.Ts.(POA) Act and they are acquitted under section 235(1) of Cr.P.C., for the said charge. The bail bonds if any of A.1 and A.2 shall stand cancelled and they are set at liberty. Unmarked property if any shall be destroyed after appeal time is over.

Dictated to the Personal Assistant, transcribed by her,

Corrected and pronounced by me in open court, this the 19th day of June, 2012. .

Sd/- Sri T.Sreerama Murthy,

Special Judge for trial of Cases under S.Cs & S.Ts

(POA) Act-cum-Addl. District & Sessions Judge, Vizianagaram.

Appendix of evidence

Witnesses Examined.

For Prosecution:-For Defence:-

PW.1 : Kondagorri SomulammaNone PW.2 : Himarika Savitri PW.3 : Kommu Challamma PW.4: Kommu Madhava Rao PW.5: Himarika Meenamma PW.6: Kommu Kesava Rao PW.7: Uma Kanthi Pada, M.R.O. Tahasildar, Kumarada, PW.8: Kommu Venkataramana PW.9: Mudadla Appalanaidu, Retd. VRO PW.10: S.Govinda Rao

DOCUMENTS MARKED

For Prosecution:

Ex.P1: Report given by PW1 to the Police. Ex.P2: Printed FIR. For Defence: Nil M.Os. Marked : Nil.

Sd/- Sri T.Sreerama Murthy,

Special Judge for trial of Cases under S.Cs & S.Ts

(POA) Act-cum-Addl. District & Sessions Judge, Vizianagaram.

IN THE COURT OF THE SPECIAL JUDGE FOR TRIAL OF CASES UNDER

SCs & STs (POA) ACT – CUM-ADDL.DISTRICT & SESSIONS JUDGE,

VIZIANAGRAM.

PRESENT: Sri K.V. Ramanaji Rao, M.A., B.L.,

Special Judge for trial of Cases under SCs & STs (POA) Act

-cum-Addl. District & Sessions Judge, Vizianagaram.

Monday, the 2nd day of March, 2015.

O.S.NO.51/2011

Between:

Sri Gujju Rama Krishna Reddi. … Plaintiff.

A n d:-

Sri Reyyi Srinu. ...Defendant

This suit coming on 16.02.2015 for final hearing before me in the presence of Sri K.L.N. Rao, Advocate for the plaintiff and of Sri L.

Satanarayana, Advocate for defendant and having stood over for consideration till this day, this Court delivered the following:

JUDGMENT

1.This is a suit filed by the plaintiff to declare that the plaintiff is the absolute owner of the plaint schedule property and for relief to deliver vacant possession of the plaint schedule property to the plaintiff after evicting the defendant and directing the defendant to remove the illegal and unauthorized constructions laid by him on the plaint schedule property at points E.F.G.H., as shown in red colour and to deliver possession of the same to the plaintiff with the expenses of the defendant, and in case the defendant refuses to demolish the said construction, to demolish the same through process of law with the expenses of the plaintiff and to reimburse the same from the defendant and for such other reliefs and for costs of the suit.

2.The plaintiff’s case, as set out in the plaint pleadings and in evidence before the court is that—

The plaintiff purchased the plaint schedule property of an extent of 283 ¼ Sq. Yards as shown in the Rough Plan in Green Colour as ABCD in the plaint plan, with specific measurements, under

Registered Sale Deed dated:17.10.1984 from Sri K. Bheema Rao, who delivered vacant possession of the schedule property to him. Since the date of purchase, the plaintiff has been in possession and enjoyment of the plaint schedule property with absolute rights. In the absence of the plaintiff, when he left to Assam, and when he returned in the month of August, 2011, he found that the defendant made construction of a R.C.C. Building in the part of the property of him by trespassing into the plaint schedule property, which is shown as EFGH in the plaint plan. The defendant or his vendor has no title , right or interest and possession or enjoyment over the plaint schedule property at any time. The plaintiff questioned the defendant and defendant asked the plaintiff to do whatever he can. The plaintiff also raised dispute before elders, who also questioned the defendant for his illegal act and unauthorized construction and advised the defendant to remove the constructions and hand over the physical vacant possession of the plaint schedule property to the plaintiff. But, the defendant unauthorized raised constructions in the plaint schedule property. Hence, the suit.

3.The defendant refuted the allegations made in the plaint and alleged in the written statement and in evidence that the plaint averments are not correct. The defendant is the absolute owner of the

Written Statement schedule property. He purchased the same under registered sale deed dated:01.03.2006 from Smt Bonela Appayyamma, who got absolute right, title and possession over the same. She handed over the possession of the written statement schedule property to the defendant, who is in possession and enjoyment of the same till today. The defendant is a bonafide purchaser of the Written

Statement Schedule property and later the defendant constructed

R.C.C. Slabbed House in the middle of the year 2010 and obtained service connection of S.C.No.6551 in the year 2010 and is living in the said house by paying electricity charges and other charges. The

Northern side owner Sri Ponnaganti Lakshmana Rao and Southern side owner of the written statement ischedule property Smt Kuppili

Padmavathi also purchased from the same vendor of the defendant on the same day, on which the defendant purchased the same. The vendor of the defendant agreed to provide 5 feet rasta altogether for the defendants and Sri Ponnaganti Lakshmana Rao and Smt Kuppili

Padmavathi for ingress and aggress and they are enjoying the said respective properties with absolute rights. The plaintiff filed the above suit with a malafide intention to put the defendant to loss and injury in one way or the other. The defendant constructed a building in the middle of 2010 itself and the plaintiff came to the court with unclean hands. The plaintiff also got issued a registered notice on 07.05.2011, which itself clearly shows that the plaintiff at all away during the said alleged four months. The suit as framed is bad under Law and the plaintiff is not entitled for any of the reliefs claimed and the Court fee paid is not correct. There is no valid cause of action to the suit. The suit is bad for non-joinder and mis-joinder of parties.

4.Basing on the above pleadings, the following issues have been settled for trial:

1.Whether the plaintiff is the absolute owner of the plaint schedule property?

2.Whether the defendant trespassed into the plaint schedule property?

3.Whether the plaintiff is entitled to get vacant possession of the schedule property?

4.Whether the plaintiff is entitled to get the relief prayed for? 5.To what relief?

5.During the course of trial,on behalf of the plaintiff, the plaintiff himself is examined as P.W.1 and also examined P.Ws.2 and 3 and Ex.A.1, Sale Deed is marked. Likewise, on behalf of the defendant, the defendant himself is examined as D.W.1 and got marked Exs.B.1 to

B.14 documents.

6.Heard both sides. Written arguments filed by the plaintiff.

7. I S S U E Nos.1 and 2:

In order to substantiate the case of the plaintiff, the plaintiff himself is examined as P.W.1 and marked Ex.A.1 sale deed of the plaintiff. The plaintiff also examined P.W.2 to support the case of the plaintiff and to say that defendant encroached the site of the plaintiff and constructed house on western side of the plot. The plaintiff also examined P.W.3 to say that plaintiff raised a dispute

before him with regard to the encroachment of the site by the

defendant. In the present case, the plaintiff also got appointed

Advocate Commissioner in I.A.No.963/2012 and got measured the property and EFGH red mark in the plaint plan property, which is the disputed site. The Commissioner got measured the property with the help of a Surveyor and filed the plan prepared by the Surveyor and filed the report showing the red marked portion as the existing house of the defendant in 162 Sq. Yards site. The defendant filed objections and both the Counsel did not submit arguments on the objections and ultimately the commission petition was closed. The plaintiff has not choosen to examine the Advocate Commissioner to give evidence or examine the Surveyor, who prepared the plan. But, as seen from the

Rough Sketch plan, there is no signature of the Surveyor to say that the Surveyor prepared the plan. The plaintiff has to necessarily examine the Advocate Commissioner , as a witness, if the plaintiff want to rely upon the findings given by the Advocate Commissioner in the above matter. But, the plaintiff did not choose to do so. Having filed the suit for declaration of title and for eviction by the defendant, the burden is heavily on the plaintiff to prove his title irrespective of the weakness of the case of the defendant.

8.The defendant also claimed that he purchased his property under registered sale deed dated:01.03.2006 from Smt Bonela

Appayyamma, who is no other than the sister of the vendor of the plaintiff and he alleges that he constructed the house RCC Slabbed

Building in the middle of the year 2010 itself and obtained electricity service connection bearing No.SC 6551 in the year 2010 and since then he is paying electricity consumption charges also to the said house and he constructed the building in his own site and he has not encroached any site of the plaintiff and the site of the plaintiff is different and the site of the defendant is different, although they are present in the same Survey No.33/12 of Gokapeta Village.

9.It came in evidence that total extent of S.C.No.33/12 is

Ac.0-90 Cents of land and the door number of defendant’s house is 1- 18-24.

10.To prove the case of the plaintiff, the plaintiff alone is examined as P.W.1 and examined P.Ws.2 and 3, who are not the neighbours of the plaint schedule property. Likewise, the defendant alone only examined as D.W.1 and he also not examined any neighbours of him and defendant want to say that in the Commissioner plan it was shown that his construction is 162 Sq.Yards and to the

North Smt K. Padmavathi’s Asbestos sheet shed is in existence. The defendant gave a separate schedule of him in the written statement as written statement schedule.

11.When compared, both the plaint schedule and the written statement schedule, in the plaint sche4dule the Eastern boundary is mentioned as Annabathula Trinadha Rao vacant house site, whereas, in the written statement schedule, the Eastern boundary is shown as

Five feet rastha. Likewise, the Southern boundary is shown in the plaint schedule as the house of Gummadi Sanyasi Rao, whereas in the written statement schedule the Southern boundary is shown as

Property of Poganti Lakshmana Rao. The Western boundary of plaint schedule property was shown as the Wet land and Palmyrah Trees of

Goka Bheema Rao, who is the vendor of the plaintiff. Likewise, the

Western boundary in the Written statement schedule is shown as property of Basava Nageswara Rao. The North of the plaint schedule property, is shown as dry land of Patta Gaddemma, whereas the

Northern boundary of the written statement schedule is shown as property of Kuppili Padmavathi.

12.Therefore as compared none of the boundaries of the plaint schedule property are tallied with the written statement schedule property. It is for the plaintiff to prove the exact location of the property. The plaintiff has to necessarily examine the boundary owners of the schedule property. It seems that the plaintiff is not aware of his own site, since plaintiff although purchased the property under Ex.A.1, registered sale deed dated:17.10.1984, he deposed in the evidence that he has visited the schedule property only in two times so far in 24 Years and after filing of the suit in 2011 he did not visit the plaint schedule property itself. As per the plaintiff’s case, he left to Assam for 3 months and return back in the month of August, 2011 by which time he noticed RCC Slabbed Building existing in his site, which is constructed by defendant. But, peculiarly plaintiff issued a registered Lawyer Notice under Ex.B.1 dated:07.05.2011 and in the said Ex.B.1 notice itself alleged that the defendant is trying to interfere with possession and trespassed into the schedule property and trying to make illegal constructions in the plaint schedule of him. Therefore, it is alleged by the plaintiff that by 07.05.2011 defendant trying to construct the building. So the contention of the plaintiff that he left to

Assam and stayed there for 3 or 4 months and only returned in

August, 2011 by which time there is RCC Building in the schedule property cannot be believed to be true, since Ex.B.1 notice itself negatives the contention of the plaintiff. But, the defendant himself filed Electricity Bills, which discloses that he paid the electricity charges of the bills even in the year 2010 and Ex.B.4, electricity Bill is of dated:16.09.2010. Therefore, the contention of the defendant that he constructed the building in the middle of the year 2010 itself can be accepted to be true.

13. The plaintiff only filed Ex.A.1 sale deed alleging that his vendor Bheema Rao, who is no other than the brother of the vendor of the defendant, it came in evidence that the plaintiff’s vendor Bheema

Rao has no wife and children and only having the sister, who is the vendor of the defendant. It also came in evidence that by the time of

Ex.B.2, sale deed dated:24.06.2005 under which, the defendant purchased the property, the plaintiff’s vendor is not alive and the defendant was able to file Ex.B.11, Pattadar pass book, which discloses that the plaintiff’s vendor died and in his place, defendant’s vendor

Appayyamma’s name is mentioned, which is issued in 1995 itself.

Therefore, plaintiff’s vendor died even before 1995.

14.The plaintiff deposed in his evidence that in all 25 Years he came to the schedule property only two times and deposed that there is no plot number mentioned in Ex.A.1 sale deed of him and the property was not made layout. Surprisingly, he deposed in the cross examination that to the East of his site a Paster is residing in a shed and he deposed that the said site occupied by the Paster is also belongs to him. P.W.2 deposed in the cross examination that he cannot say the measurements of the site of the plaintiff and he deposed that he has not constructed any compound wall to his house and no one constructed Compound walls to the sites. P.W.2 deposed in the evidence that when plaintiff raised a dispute before the Councilor, may be P.W.3, the defendant told in the said meeting that he purchased the site and constructed the house in his own site. P.W.3, who deposed that he is Councilor from 2005 to 2010 and plaintiff approached him in November, 2010 and he called Ramesh, who is the Grand-son of the defendant’s Vendor, Appayyamma and he admitted to give another site to the plaintiff in stead of disputed site. But, he has not signed on any document. He deposed that the defendant also did not execute any document or attempted to give any new site to the plaintiff, instead of disputed site. Therefore, the evidence of P.Ws.2 and 3 is not helpful to the case of the plaintiff and does not establish the title and possession of the plaint schedule property to the plaintiff. Therefore, the plaintiff failed to prove that he is the absolute owner of the plaint schedule property, within the boundaries mentioned therein and also failed to prove that the defendant encroached the plaint schedule property and therefore, the plaintiff failed to prove that he is the absolute owner of the plaint schedule property or the defendant trespassed into the plaint schedule property. Accordingly, issue Nos.1 and 2 are answered against the plaintiff.

15. I S S U E No.3:

3. Whether the plaintiff is entitled to get vacant

possession of the schedule property?

Since issue Nos.1 and 2 are answered against the plaintiff, the plaintiff is also not entitled to vacant possession of the disputed property EFGH marked in the plaint plan. Accordingly, the 3rd issue is also answered against the plaintiff.

16. I S S U E Nos.4 and 5:

4. Whether the plaintiff is entitled to get the relief prayed for?

5. To what relief?

Since both the issues are one and the same and since the main issues Nos.1 to 3 are answered against the plaintiff, that the plaintiff failed to prove that he is the absolute owner of the plaint schedule property within the boundaries mentioned there in and failed to prove that the defendant encroached the plaint schedule property, the plaintiff is not entitled for any decree whatsoever.

17.In the result, the suit is dismissed without costs.

Dictated to the Personal Assistant, transcribed by her,

corrected, signed and pronounced by me in open court, this the 2nd day of March, 2015.

Sd/- Sri K.V. Ramanaji Rao,

Special Judge for trial of Cases

under SCs & STs (POA) Act-cum- Addl. District & Sessions Judge, Vizianagaram.

APPENDIX OF EVIDENCE

Witnesses Examined

For Plaintiff: For Defendant:

P.W.1: G. Rama Krishna Reddy. D.W.1: Reyyi Srinu. P.W.2: Annabatthula Trinadha Rao. P.W.3: Karanam Rama Rao.

Documents Marked

For Plaintiff: Ex.A.1: 17.10.1984Sale deed executed by Goka Bheema Rao.

For Defendant:

Ex.B.1: 07.05.2011Registered Lawyer Notice. Ex.B.2: 24.06.2005Registration extract of sale deed, executed by Bonela Appayyamma in favour of defendant. Exs.B.3 to B.8:Electricity Bills. Ex.B.9: 01.03.2006Registration extract of sale deed executed by B. Appayyamma in favour of P. Lakshmana Rao. Ex.B.10: 01.03.2006Registration extract of sale deed executed by B. Appayyamma in favour of K. Padmavathi.

Ex.B.11:The Pattadar pass book of the vendor. Ex.B.12:Title deed of vendor.

Ex.B.13:True copy of FMB Sketch for the field No.33. Ex.B.14: 01.03.2006Registration extract of sale deed executed by B. Appayyamma in favour of Reyyi Srinu.

Sd/- Sri K.V. Ramanaji Rao

Special Judge for trial of cases under

S.Cs & S.Ts (POA) Act – Cum-Addl. District & Sessions Judge, Vizianagaram.

IN THE COURT OF THE SPECIAL JUDGE FOR TRIAL OF CASES UNDER S.Cs &

S.Ts (POA) ACT –CUM- ADDL.DITRICT & SESSIONS JUDGE, VIZIANAGARAM. PRESENT: Sri T.Sreerama Murthy,M.A.LL.B.,

Special Judge for trial of Cases under S.Cs & S.Ts (POA) Act

-cum-Addl.District & Sessions Judge, Vizianagaram. Thursday, this the 28th day of June, 2012. SC ST Sessions Case No.15/2011. 1.Name of the Complainant: State represented by the Sub Inspector Of Police, Pedamanapuram P.S. 2.Name of the accused:: Tarlada Shankar Rao s/o Satyam 35 years, T.Kapu by caste, Dasupeta village, Dattirajeru Mandal. 3.Charges: Under sections 3(1)(x) of SCs & STS POA Act and under sec.352 IPC 4.Plea of accused: Not guilty. 5.Finding of the Judge: Accused is found not guilty for the offence Under sections 3(1)(x) of SCs & STS POA Act and Under section 352 IPC. 6.Sentence or order: Accused is acquitted under section 235(1) of Cr.P.C., for the said charges. 7.Prosecution conducted by: Addl., Public Prosecutor, Vizianagaram. 8.Defence conducted by: Sri S.N.M. Raju Advocate. Vizianagaram.

This case was committed by the learned Judicial Magistrate of I Class, Gajapathinagaram in P.R.C.5/2011 and after hearing the learned Public Prosecutor on behalf of State and the learned Counsel appearing for the accused, the case having been stood over for consideration till this day, this Court delivered the following:

J U D G M E N T

This case is arising out of the Charge sheet filed against the accused by the Sub Divisional Police Officer, Vizianagaram in crime No.18/2010 of Pedamanapuram Police Station before the Judicial Magistrate of I Class, Gajapathinagaram who took it on file as P.R.C.No.5/2011 for the offences punishable Under section 3 (1((x) of Scs & STS (POA) Act and 352 IPC.

2. After appearance of accused before the learned Magistrate and after hearing the Learned Additional Public Prosecutor and defence counsel and after going through the material available on record, the Learned Magistrate having come to a conclusion that the case is exclusively triable by the Court of Sessions, has committed the same to the Court of Special Judge for trial of Cases under SCs & STS (POA) Act cum-Addl., District and Sessions Court, Vizianagaram under section 209 (a) Cr.P.C.

3. After receipt of record, this Court numbered it as SCs & STs Sessions Case No.15/2011.

4. The brief facts of the prosecution case are as under:

2

The accused is a resident of Dasupeta village and belongs to T.Kapu caste. L.W.1 G.Ramulu is a resident of the same village and belongs to S.C. (Mala). A complaint was lodged with Chief Vigilance Officer, Hyderabad, to the fact that the amounts were drawn towards payment of wages to the coolies for a non- existing tank. L.W.5 Nagalaxmi came to the village Dasupeta as per orders of her superiors on 23.4.2010 to enquire into the allegations and while she was conducting enquiry at Rama Mandiram at about 6.50 a.m., the accused came and questioned her as to why he was not approached even though he is the complainant. Upon which, Nagalaxmi replied that she planned to examine the coolies first before coming to him. She further told that the coolies told her that they have worked in respect of barikala Banda and received payments upon which the accused flared up and shouted that he would give complaint and as she realized that her presence will intensify the situation to further hot up, she left the place. Since L.W.1 Ramulu contradicted the version of the accused and gave statement against the contents of complaint, the latter abused him as Mala Lanja Kodaka and assaulted him by catch holding his shirt and pushed him away. L.Ws.2 to 4 by name Siripurapu Sreenivasarao, Palli Arasavilli and Rapaka Nageswar Rao came to the rescue of Ramulu and subsided the matter. ON a report given by Ramulu, the Sub Inspector of Police, Pedamanapuram P.S., registered a case in crime No.18/2010 under section 3 (1)(x) of Scs & STs (POA) Act. The S.D.P.O., Vizianagaram took up investigation in this case as per the proceedings issued by Superintendent of Police, Vizianagaram and examined the witnesses and after completion of investigation he filed charge sheet against the accused under the above said sections of Law.

5. After appearance of accused before this court he engaged a Counsel to defend him. After hearing the learned Additional Public Prosecutor and defence Counsel and after going through the material available on record, charges Under section 3 (1)(x) of SCs & STs (POA) Act and 352 IPC were framed against the accused and when the same were read over and explained to him in Telugu, he pleaded not guilty and claimed to be tried.

6. To prove prosecution case, the prosecution examined P.Ws.1 to 6 and got marked Exs.P.1 to P.7

7. After closure of prosecution side evidence, the accused was examined under section 313 Cr.P.C., for which he denied the incriminating circumstances appearing against him in the evidence adduced on behalf of prosecution. The accused did not adduce any oral or documentary evidence on their behalf.

8. Now the point that arises for consideration is whether the prosecution is able to bring home the guilt of the accused beyond all reasonable doubt so as to convict him for the offence charged?

9. Point: The accused is charged under section 3 (1)(x) of SCs & STs (POA)

Act and under section 352 IPC on the ground that on 23.4.2010 at about 6.50 a.m., when Nagalakshmi was conducting enquiry with regard to payment of wages to the coolies for non-existing tank at Rama Mandiram in Dasupeta village the accused abused L.W.1 Ramulu in the name of his caste and also assaulted him and pushed 3 him. The Investigating Officer has cited nine witnesses, out of whom the prosecution examined six witnesses. P.W.1 is the alleged victim and P.Ws.2 to 4 are the alleged eye witnesses to the incident proper. In the evidence of PW1 he has stated that about two years ago on one day at about 6 to 7 a.m., he found several persons gathering at Ramamandiram of their village and there was some pushing amongst the members gathered there and some time later they went to police station and as he was asked to put his signature on some document be put his signature without knowing it’s contents and Ex.P.1 is his signature and police did not examine him in this case. P.W.2 is one Srinivasarao and as per his evidence on one day in the month of April, 2010 at about 7 a.m., while Nagamnai was making enquiry at Rama Mandiram a galata took place and the accused caught hold of the collar of P.W.1 and beat him, upon which he and some others interfered and subsided the matter. P.W.3 is Arasavilli and in his evidence he totally denied to have any knowledge about the incident of this case. P.W.4 is one Narasingarao and as per his evidence that on 23.4.2010 at about 7 a.m., Nagalakshmi came to their village and made enquiry about the irregularities in food for work programme near Rama Mandiram and at that time a galata took place. Except that he did not depose anything wrong against the accused. P.W.5 is one Ramamurty and his evidence reveals that the SI of Police, Manapuram gave a requisition to him to issue caste certificates, accordingly, he issued caste certificates of PW1 and accused and others and Ex.P.5 is the caste certificate issued by him. P.W.6 is Sub Inspector of Police and he simply stated that on 24.4.2010 at about 9 hours PW1 came to police station and gave a report and he registered the same as a case in crime No.18/2010.

10. Since P.Ws.1, 3 and 4 did not support the case of prosecution, the learned APP has given up to examine L.Ws.5,8 and 9. The counsel for accused has contended that as the punishment prescribed under SC, ST (POA) Act is serious and heavy the evidence must be clear, cogent and as PWs.1,3 and 4 did not depose anything wrong against accused he shall be given benefit of doubt and to be acquitted. In support of his contention, he relied on a decision reported in Vennapusa Gangireddy alias Sadhu and others Vs. State of A.P., wherein it is held: “Provisions of Act are given overriding powers over other laws. Punishment prescribed is serious and heavy. Therefore, standard of proof required in case of this type is very heavy. Mere allegations of two or three witnesses belonging to one group cannot be trusted, that too when their evidence is ridden with contradiction. Evidence of P.Ws.1 to 4 is doubtful as to accused throwing their musical instruments and locking temple. Accused are entitled to benefit of doubt. Hence, acquitted. Conviction and Sentence recorded by trial court set a side. Appeal allowed. In view of the principles laid down in the decision citied supra, in a case of this nature the burden of proof heavily rests on the prosecution to prove it’s case and in case the evidence adduced on behalf of prosecution is not trustworthy 4 and suffers from infirmities the same is to be thrown out and the accused shall be given benefit of doubt and to be acquitted. 11P.W.1 is the alleged victim but for the reasons best known he did not depose anything wrong against the accused. He simply stated that there was a pushing amongst the members gathered at the time of enquiry and some of them went to police station and as he was asked to sign on a document, he signed on the same without knowing it’s contents. Though P.W.2 has stated that the accused caught hold of the collar of PW1 and beat him, no reliance can be placed on the said evidence as PW1 did not depose about the said fact. P.Ws.3 and 4 are the alleged eye witnesses to the incident proper but P.W.3 denied to have any knowledge about this incident. Though P.W.4 has stated that a galata took place when Nagamani was enquiring about the errors committed in implementing the food for work programme, the said evidence is no way helpful to the prosecution to believe the complicity of the accused in commission of the offence. He did not depose anything wrong against the accused. Even if it is believed that a galata took place and in the said galata there was a pushing amongst the members gathered, it cannot be said that the accused abused PW1 in the name of his case and beat him. 12In order to attract the provisions of Section 3 (1)(x) of S.C. & S.T. (POA) Act there must be clear evidence to prove that the accused had an intention to humiliate P.W.1 within public view and that PW1 belongs to S.C. or S.T. caste and that the accused is a non S.C. or S.T. But there is no whisper in the evidence of P.Ws.1 to 4 as to which caste P.W.1 and accused belongs. Though P.W.2 has stated that the accused caught hold the collar of PW1 and beat him the said fact is not deposited by PWs.1, 3and 4. If really, P.W.2 is true in his contention the police would have sent PW1 to the Government Hospital for examination and report but no such report is forthcoming to believe that PW1 was beaten by the accused in the above said galata. As P.ws.1, 3 and 4 did not depose anything wrong against the accused I am of the considered opinion that the prosecution has miserably failed to prove it’s case beyond reasonable doubt so as to convict the accused for the offences charged. 13 In the result, the accused is found not guilty for the offence punishable under section 3(1) (x) of S.Cs. & S.Ts.(POA) Act and under section 352 IPC and he is acquitted under section 235(1) of Cr.P.C., for the said charges. The bail bonds if any of accused shall stand cancelled and he is set at liberty. Unmarked property if any shall be destroyed after appeal time is over.

Dictated to the Personal Assistant, transcribed by her, Corrected and

pronounced by me in open court, this the 28th day of June, 2012. .

Sd/- Sri T.Sreerama Murthy

Special Judge for trial of Cases under S.Cs & S.Ts

5 (POA) Act-cum-Addl. District & Sessions Judge, Vizianagaram.

Appendix of evidence Witnesses Examined. For Prosecutions:-For Defence:- PW.1 : Goddu RamuluNone PW.2: S. Srinivasa Rao PW.3: Palli Arasavilli PW.4: R. Nageswara Rao PW.5: AVRSSR Rama Murty, Tahsildar PW.6: B. Venugopalarao

DOCUMENTS MARKED

For Prosecutions: Ex.P.1: Signature of PW1 on the report given to the Police. Ex.P.2: 161 C r.P.C., statement of PW1 dt.25.4.2010 Ex.P.3: 161 Cr.P.C., statement of PW3 dt.25.4.2010 Ex.P.4: 161 Cr.P.C., statement of PW4 dt.25.4.2010 Ex.P.5: Caste Certificate Ex.P.6: Report given by PW1 to police. Ex.P.7: Printed FIR in crime No. For Defence: Nil M.Os. Marked : Nil.

Sd/- Sri T.Sreerama Murthy

Special Judge for trial of Cases under S.Cs & S.Ts

(POA) Act-cum-Addl. District & Sessions Judge, Vizianagaram.