Sub Divisional Police Officer, Dhone took up investigation in this case in accordance with Rule 7 of the S.Cs and S.Ts (Prevention of Atrocities) Rules, 1995= no illegality or irregularity or impropriety - investigating on oral permission from concerned authority = This not a case where P.W-8 started, proceeded and completed investigation without any authorisation from the competent authority viz., the Superintendent of Police. In this case P.W-8 obtained oral permission of the competent authority for investigation and started the investigation and while proceeding with the investigation, he received formal proceedings from the competent authority two days thereafter. Subsequently P.W- 8 continued the investigation and collected some more evidence and arrested the accused. In my opinion, until getting formal orders of the competent authority empowering the investigating officer for investigation in a case of this nature, the department cannot afford to wait and cannot allow evidence to dwindle without its collection and preservation. The proceedings dated 14.12.2003 of the Superintendent of Police validate the entire investigation of P.W-1 in this case. Therefore, there is no illegality or irregularity or impropriety on the part of P.W-8 in taking up investigation of this case and completing the investigation.; It is evidence of P.Ws 1 to 3 that A-2 caught hold of neck/throat of P.W-1 and scratched on his chest and beat him on chest and that A-3 scratched P.W-1 on his cheek. The medical officer P.W-5 found a scratching injury only on chest, apart from complaints of pain on neck. He did not find any injury on any cheek of P.W-1. There is no medical corroboration for the overt act alleged against A-3. - Genesis of this incident appears to be the unauthorised entry and movement of P.W-1 across garden land belonging to A-1; and when A-1 questioned P.W-1 about the same, P.W-1 became aggrieved and went away and after two days he gave Ex.P-1 report alleging abuses in the name of his caste.= It is evidence of P.Ws 1 to 3 that A-2 caught hold of neck/throat of P.W-1 and scratched on his chest and beat him on chest and that A-3 scratched P.W-1 on his cheek. The medical officer P.W-5 found a scratching injury only on chest, apart from complaints of pain on neck. He did not find any injury on any cheek of P.W-1. There is no medical corroboration for the overt act alleged against A-3. Therefore, I doubt the presence of A-3 at the scene and his participation in the offence. If really A-2 intended to insult P.W-1 as he belongs to Mala caste, A-2 could have dealt with blows on P.W-1 with any stick or other weapon without touching him. The fact that A-2 is alleged to have caught hold of neck of P.W-1 and scratched on chest of P.W-1, indicates that he has no discrimination on the basis of caste. A-2 did not hesitate to touch P.W- 1 with his hands. It is contended by the accused during trial in the lower Court that P.W-1 questioned A-1 because he was moving through agricultural land belonging to A-1 unauthorisedly. This is not a case where A-1 questioned P.W-1 on the ground that he was moving in the locality of the accused. P.W-3 denied the said suggestion. On the other hand, P.W-4 who turned hostile for the prosecution deposed that A-1 abused P.W-1 saying as to how he has got right to move through his garden land. Genesis of this incident appears to be the unauthorised entry and movement of P.W-1 across garden land belonging to A-1; and when A-1 questioned P.W-1 about the same, P.W-1 became aggrieved and went away and after two days he gave Ex.P-1 report alleging abuses in the name of his caste. Evidence of P.W-4 casts shadow of doubt on the prosecution case as to the reason for the incident as contended by the prosecution. Even as per the prosecution case at the place of incident, A-1's agricultural land is there. In those circumstances, I am of the opinion that the lower Court did not appreciate the evidence on record with reference to genesis of the incident and came to an erroneous conclusion in favour of the prosecution. I do not agree with the reasoning and finding of guilt recorded by the lower Court.

THE HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU              

CRIMINAL APPEAL No.2520 of 2004    

06-09-2011


Mogili Seshi Reddy and others
       
The Station House Officer, Jonnagiri Police Station Kurnool Dist and another

Counsel for the Appellants : Sri A.Chandraiah Naidu

Counsel for the Respondents:  Public Prosecutor

JUDGMENT :  
        A-1 to A-3 who are father and sons are the appellants herein.  They were
convicted by the lower Court under Section 3(1)(x) of the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act, 1989 and were sentenced to
Simple Imprisonment for six months and fine of Rs.1,000/- each.  A-2 and A-3
were also convicted under Section 323 I.P.C and were sentenced to pay fine of
Rs.1,000/- each.  Questioning the same, A-1 to A-3 filed this appeal.
        2) P.W-1/victim belongs to Mala community which is a scheduled case, where
as A-1 to A-3 belong to Reddy community.  There is no dispute about the castes
of the parties.  Ex.P-7 is caste certificate relating to P.W-1.  It is alleged
that on 08.12.2003 at about 5.00 P.M when P.W-1 and his sister P.W-2 were 
talking to each other near drinking well in Jonnagiri village, A-1 who is having
agricultural land near the well went to P.W-1 and abused him touching his Mala
caste and questioned him as to whether it was the way for him to move, and that
when P.W-1 questioned A-1 about the manner in which he spoke, A-2 and A-3  
interfered and they also abused P.W-1 touching his Mala caste and pounced upon 
him and caused injuries to him.  Plea of A-1 to A-3 is one of total denial and
one of not guilty.
        3) During trial in the lower Court, P.Ws 1 to 3 supported the prosecution
case. The other eye witness P.W-4 turned hostile to the prosecution and did not
support the prosecution case.  P.W-5 is the medical officer, who examined P.W-1
and issued Ex.P-3 wound certificate.
        4) Even though the offence is stated to have taken place on 08.12.2003 and
in spite of the police station located in the same village, P.W-1 did not choose
to give his report Ex.P-1 to the police on the same day of occurrence.  He gave
Ex.P-1 report to P.W-6, the Assistant Sub Inspector of Police on 10.12.2003 at
10.00 A.M.  It is evidence of P.W-1 that out of fear for the accused, after the
offence he went away to Gooty and returned to the village on 10.12.2003 and
thereafter, gave report to the police.  In a case of this nature, delay of about
40 hours in giving report to the police does not assume much importance.  This
is not an offence relating faction dispute in which there is possibility of
several persons being roped into the case after consultations and
confabulations.
        5) It is contended by the appellants' counsel that when the offence took
place at a public place on road near drinking water well, there is possibility
of persons moving around the scene at the time of offence and that failure of
the prosecution to examine independent witnesses is fatal to the prosecution.
Except details of the scene of offence, there is nothing on record to show that
there were any other persons than P.Ws 1 to 4 and A-1 to A-3 at the scene at the
time of offence.  Even though P.Ws 1 and 2 are closely related as brother and
sister and P.W-3 is related as cousin, there is an independent witness P.W-4 in
this case.  The said independent witness who belongs to Madiga caste did not
support the prosecution case.  Independence of the witnesses cannot be
determined on the basis of their castes.  Even from among the same community
people, there may be independent witnesses.  It gives wrong signals if it is
observed that witnesses cannot be said to be independent simply because all of
them belong to one and the same caste.
        6) P.W-8 who is the then Sub Divisional Police Officer, Dhone took up
investigation in this case in accordance with Rule 7 of the S.Cs and S.Ts
(Prevention of Atrocities) Rules, 1995.  He perused copy of F.I.R in this case
during tapal on 12.12.2003 and thereupon he took up investigation of this case.
He examined P.Ws 1 to 4 on 12.12.2003 itself.  It is contended by the
appellants' counsel that his investigation is vitiated as P.W-8 received
authorisation from the Superintendent of Police by way of proceedings dated
14.12.2003.  It is P.W-8's evidence that after going through F.I.R in this case,
he contacted the Superintendent of Police by phone and obtained permission from
the Superintendent of Police and proceeded with the investigation of this case
thereafter on 12.12.2003 itself and that subsequently on 14.12.2003 he received
proceedings of the Superintendent of Police of the even date authorising him as
investigating officer in this case.  It is no doubt true that Rule 7 of the
Rules is held to be mandatory.  This not a case where P.W-8 started, proceeded
and completed investigation without any authorisation from the competent
authority viz., the Superintendent of Police.  In this case P.W-8 obtained oral
permission of the competent authority for investigation and started the
investigation and while proceeding with the investigation, he received formal
proceedings from the competent authority two days thereafter.  Subsequently P.W-
8 continued the investigation and collected some more evidence and arrested the
accused.  In my opinion, until getting formal orders of the competent authority
empowering the investigating officer for investigation in a case of this nature,
the department cannot afford to wait and cannot allow evidence to dwindle
without its collection and preservation.  The proceedings dated 14.12.2003 of
the Superintendent of Police validate the entire investigation of P.W-1 in this
case.  Therefore, there is no illegality or irregularity or impropriety on the
part of P.W-8 in taking up investigation of this case and completing the
investigation.
        7) Coming to merits of the case, it is contended by the appellants'
counsel that false case was foisted against the accused due to political rivalry
at the instance of one Guruswamy who was elected as Surpanch and who was  
supported by the prosecution party and who was opposed by the accused party
during elections.  P.W-1 denied the suggestion made by the defence counsel in
that regard.  Except a suggestion which was promptly denied, there is no other
material on record to substantiate this contention of foisting false case due to
political reasons.
        8) It is evidence of P.Ws 1 to 3 that A-2 caught hold of neck/throat of
P.W-1 and scratched on his chest and beat him on chest and that A-3 scratched 
P.W-1 on his cheek.  The medical officer P.W-5 found a scratching injury only on
chest, apart from complaints of pain on neck.  He did not find any injury on any
cheek of P.W-1.  There is no medical corroboration for the overt act alleged
against A-3.  Therefore, I doubt the presence of A-3 at the scene and his
participation in the offence.  If really A-2 intended to insult P.W-1 as he
belongs to Mala caste, A-2 could have dealt with blows on P.W-1 with any stick
or other weapon without touching him.  The fact that A-2 is alleged to have
caught hold of neck of P.W-1 and scratched on chest of P.W-1, indicates that he
has no discrimination on the basis of caste.  A-2 did not hesitate to touch P.W-
1 with his hands.  It is contended by the accused during trial in the lower
Court that P.W-1 questioned A-1 because he was moving through agricultural land
belonging to A-1 unauthorisedly.  This is not a case where A-1 questioned P.W-1
on the ground that he was moving in the locality of the accused.  P.W-3 denied
the said suggestion.  On the other hand, P.W-4 who turned hostile for the
prosecution deposed that A-1 abused P.W-1 saying as to how he has got right to
move through his garden land.  Genesis of this incident appears to be the
unauthorised entry and movement of P.W-1 across garden land belonging to A-1; 
and when A-1 questioned P.W-1 about the same, P.W-1 became aggrieved and went     
away and after two days he gave Ex.P-1 report alleging abuses in the name of his
caste.  Evidence of P.W-4 casts shadow of doubt on the prosecution case as to
the reason for the incident as contended by the prosecution.  Even as per the
prosecution case at the place of incident, A-1's agricultural land is there.  In
those circumstances, I am of the opinion that the lower Court did not appreciate
the evidence on record with reference to genesis of the incident and came to an
erroneous conclusion in favour of the prosecution.  I do not agree with the
reasoning and finding of guilt recorded by the lower Court.
        9) In the result, the appeal is allowed setting aside the convictions and
the sentences passed by the lower Court against the appellants 1 to 3/A-1 to A-3
and acquitting them.

_______________________________    
SAMUDRALA GOVINDARAJULU, J        
September 06, 2011