Gorimella Venkatasubbaiah and 3 Others, Vs the State of a.P., Rep by Pp.

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APHC010331882009

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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction)

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[3368]

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WEDNESDAY, THE ELEVENTH DAY OF MARCH TWO THOUSAND AND TWENTY SIX

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PRESENT

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THE HONOURABLE SRI JUSTICE B V L N CHAKRAVARTHI

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CRIMINAL APPEAL No: 1204/2009

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Between:

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GORIMELLA VENKATASUBBAIAH AND 3 OTHERS, S/O. KRISHNAIAH, R/O. KALAPADU VILLAGE, VENKATAGIRI MANDAL, NELLORE DISTRICT.

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GORIMELLA MALLIJKARJUNA A-2, S/O. KRISHNAIAH, R/O. KALAPADU VILLAGE, VENKATAGIRI MANDAL, NELLORE DISTRICT.

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NARUBOYINA CHENCHAIAH, A-3, S/O. CHINNAIAH, R/O. KALAPADU VILLAGE, VENKATAGIRI MANDAL, NELLORE DISTRICT.

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GORLA SUBBAIAH, A-4, S/O. RAMAKRISHNAIAH, R/O. KALAPADU VILLAGE, VENKATAGIRI MANDAL, NELLORE DISTRICT.

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...APPELLANT(S)

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AND

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THE STATE OF A P REP BY PP, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF A.P., HYDERABAD.

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...RESPONDENT

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Appeal under Section 372/374(2)/378(4) of Cr.P.C praying that the High Court may be pleased to present this Memorandum of Grounds of Criminal Appeal to this Hon'ble Court against the

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Judgment of Special Judge for Trial of Offences Under SC & ST (POA) Act, at Nellore, in S.C.No.36 of 2006, dated 22^nd day of September, 2009

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IA NO: 1 OF 2009(CRLAMP 2387 OF 2009

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Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to suspend the execution of sentence of imprisonment dated 22.09.2009 passed in S.C.No.36 of 2006 on the file of the Special Judge for Trial of Offences Under SC and ST (POA) Act, Nellore.

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Counsel for the Appellant(S):

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1.V R GOGUSETTY

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Counsel for the Respondent:

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1.PUBLIC PROSECUTOR (AP)

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The Court made the following:

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THE HONOURABLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI

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CRIMINAL APPEAL No.1204 OF 2009

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J U D G M E N T:

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Heard Sri V.R.Gogusetty, learned counsel for the appellants/A1 to A4 and Sri C.Panini Somayaji, learned Additional Public Prosecutor representing for State.

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The appeal is preferred by the appellants/convicts/A1 to A4 challenging the Judgment dated 22.09.2009 in Sessions Case No.36 of 2006 on the file of the learned Sessions Judge for Trial of Offences under the SCs & STs (PoA) Act, 1989-cum-V Additional Sessions Judge, Nellore.

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The learned Special Court convicted the appellants for the offence under Sections 447 IPC, 3(1)(v) and 3(1)(x) of the SCs & STs (PoA) Act, 1989. The appellants/A1 to A4 were convicted and sentenced to pay fine of Rs.500/- (Rupees Five Hundred only) each, in default, to undergo simple imprisonment for a period of one (01) month each, for the offence under Section 447 IPC. The appellants further sentenced to undergo rigorous imprisonment for a period of three (03) years and to pay a fine of Rs.1,000/(Rupees One Thousand only) each, in default simple imprisonment for a period of one (01) month each for the offence under Section

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3(1)(v) of SC & SCs (PoA) Act, 1989. The appellants further sentenced to undergo rigorous imprisonment for a period of three (03) years and to pay a fine of Rs.1,000/- (Rupees One Thousand only) each, in default simple imprisonment for a period of one (01) month each for the offence under Section 3(1)(x) of SC & SCs (PoA) Act, 1989.

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For the sake of convenience, the parties hereinafter referred to as they were arraigned before the learned Sessions Court.

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CASE OF THE PROSECUTION:

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The case of the prosecution is that PWs-1 to 3 own Ac.3.00 of wet land in Kalapadu Village. The accused/A1 encroached Ac.0.04 cents of the land of PW1. PWs-1 to 3 approached the Mandal Revenue Officer, Venkatagiri Mandal, for conducting survey of the land and fixed up boundaries. Therefore, PW-6, the Mandal Surveyor, Podalakuru, on the instructions of Mandal Revenue Officer, visited the land on 18.10.2004 and surveyed the land. He informed both parties, if they are having any doubts or objections on the survey, they can submit their objections to the Mandal Revenue Officer. Later, on 20.10.2004 PWs-1 to 3 visited the land at about 7.00 am. They were raising bunds as per the

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survey stones fixed by the surveyor. At about 8.00 am, the appellants/A1 to A4 came to the land insulted PWs-1 to 3, in the name of caste in the presence of others. The accused also prevented PWs-1 to 3 from raising the bund. PW-1 disgusted with the acts of the accused, consumed poison, which is available in the land at about 1.00 pm. He was shifted to hospital at Tirupati.

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PW-2 presented a report to the Police vide Ex.P1. The Assistant Sub-Inspector of Police, Guduru II Town Police Station (PW-5), registered a case in Cr.No.140 of 2004 of Venkatagiri Police Station, for the offence under Section 306 r/w 109 IPC and under Section 3(1)(x) of SCs & STs (PoA) Act, 1989 and submitted original FIR to the Court vide Ex. P4. The Sub-Divisional Police Officer, PW-8 conducted investigation into the case. PW-4, Civil Surgeon, Government Hospital, Venkatagiri, treated PW-1 and issued Ex.P2 certificate that he consumed oregano phosphate, a poisonous material. PW-8 visited the scene of offence i.e., disputed land seized insecticide tin under the cover of observation report-Ex. P5 in the presence of PW-7 and others. He also prepared rough sketch for the scene of offence vide Ex.P7. Later, on 05.11.2004, arrested the appellants/A1 to A4 examined the witnesses, recoded their statements and collected caste

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certificates of victim and other witnesses issued by the Mandal Revenue Officer. After, conclusion of the investigation, he laid charge sheet before the Special Court.

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The Special Court charged the appellants/A1 to A4 for the offence under Sections 3(1)(v) and 3(1)(x) of the SCs & STs (PoA) Act, 1989. The accused were also charged for the offence under Section 447 of IPC. The plea of the accused is denial of the case of the prosecution.

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EVIDENCE FOR THE PROSECUTION :

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PWs-1 to 8 were examined vide Exs.P1 to P9 were filed for the prosecution.

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The appellants/A1 to A4 were examined under Section 313 Cr.P.C. regarding incriminating circumstances appearing against them. They denied the same as false and pleaded not guilty. No evidence was placed for the defence.

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FINDING OF THE SESSIONS COURT :

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The learned Special Court on consideration of the above evidence placed for the prosecution found the appellants/A1 to A4 guilty for the offence under Section 447 IPC and under Sections 3(1)(v) and 3(1)(x) of the SC & ST (PoA) Act, 1989, convicted and

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sentenced as mentioned above. Hence, the appeal came to be preferred by the appellants/A1 to A4.

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SUBMISSIONS ON BEHALF OF THE APPELLANTS/ACCUSED :

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Sri V.R. Gogusetty, learned counsel for the appellants/A1 to A4 vehemently argued that to establish the offence under Section 447 of IPC, the basic requirement is that disputed land was in possession of the victim on the date of alleged incident. To prove the offence under Section 3(1)(v) of the SCs & STs (PoA) Act, 1989, the prosecution must establish that the disputed land belongs to the victim. In the case on hand, except the self serving statements of the PWs-1 to 3, no other evidence placed before the Court to prove the title, right or interest and possession of the victim over the disputed land at the time of alleged offence.

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He would submit that even as per the case of the prosecution, there is a dispute regarding the title and possession of the land between respective parties. Therefore, the burden is on the prosecution to prove the title as well possession of the victim over the disputed land on the date of alleged incident i.e., on 20.10.2004. The prosecution did not place any documents like title deeds, sale deeds or patta issued by the Government, pattadar passbook, revenue record or tax receipts issued by the revenue

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authorities to prove the title, right, interest or possession of the victim over the disputed land on the date of incident. The prosecution examined the Mandal Surveyor, PW-6. He simply deposed that he conducted survey on 18.10.2004. He did not depose that what are the documents he perused at the time of survey to say that the disputed land belongs to the victim and that victim was in possession of the land on the date of his survey. Therefore, in the absence of evidence regarding verification of the records by the surveyor, his testimony regarding survey will not carry the prosecution to prove that victim was having right, title, interest or possession over the disputed land on the date of incident.

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He would further submit that the prosecution without placing the best evidence to prove the title and possession of the victim over the disputed land, cannot say that it has proved the offence under Section 447 IPC and Section 3(1)(v) of SCs & STs (PoA) Act, 1989. No reason was assigned by the prosecution for non- production of the best evidence i.e., documentary evidence to prove the title and possession of the victim over the disputed land. Hence, the prosecution miserably failed to prove the offence under Section 447 IPC as well as offence under Section 3(1)(v) of SCs &

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STs (PoA) Act, 1989. But the trial Court did not consider these aspects. Simply relied on the oral and self serving testimony of PWs-1 to 3 and came to an erroneous conclusion that prosecution proved the title and possession of the victim over the disputed land. The said finding of the trial Court is not based on evidence and therefore, it is not sustainable in law.

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He would further submit that the prosecution to establish the offence under Section 3(1)(x) of the SCs & STs (PoA) Act must prove that the accused intentionally insulted or intimidated the victim in any place within public view. He argued that of PWs-1 to 3 interested in the result of the case. It does not disclose any thing to prove that the accused insulted the victim with an intention to humiliate as the victim is a member of Scheduled Caste or Scheduled Tribe. PWs-1 to 3 in their evidence did not disclose what are the words uttered by the accused individually among A1 to A4 to say that those words would come under the category of insult or intimidating the victim. Therefore, no evidence has been made out to prove the offence.

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He would further submit that prosecution has cited three independent witnesses stating that they witnessed the incident occurred on 20.10.2004. The accused insulted and intimidated the

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victim in their presence. Surprisingly, the prosecution for the reasons best known to it, did not choose to examine the said independent witnesses and satisfied with the sole testimony of victim, his mother and brother.

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The evidence on record would disclose that there is a genuine dispute relating to the land in question. Therefore, there is every chance for the victim and his family members to make a false statement against the accused to settle the civil dispute with regard to the land. In those circumstances, non-examination of independent witnesses, though cited is fatal to the case of the prosecution. This important aspect was also not considered by the learned trial Court. Therefore, the finding of the trial Court is not sustainable either on facts or in law.

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SUBMISSIONS ON BEHALF OF THE RESPONDENT/STATE :

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Learned Additional Public Prosecutor would argue that there

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are no grounds to interfere with the judgment of the trial Court. He would argue that the evidence of PWs-1 to 3 i.e., victim, his mother and brother is corroborated by the evidence of the Mandal Surveyor. Their evidence established that the victim is having title and possession over the land. The evidence of PWs-1 to 3 would establish that on 20.10.2004, the appellants/A1 to A4 went to the

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land in possession of victim, trespassed into the land and abused the victim and his family members with an intention to insult them in the name of caste. Therefore, the prosecution proved the charges beyond all reasonable doubt.

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Considering the circumstances, there are no grounds to interfere with the judgment of the trial Court.

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In the light of above rival contentions, the point that would arise for consideration in the Criminal Appeal is as under:

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20. “ Whether there are grounds to interfere with the

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judgment of the trial Court ?”

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POINT: The case of the prosecution is that the victim and his family is having Ac.3-00 of land in Kalapadu Village. The appellants/A1 to A4 encroached the land. Therefore, PWs-1 & 2 presented a requisition to the Mandal Revenue Officer for conducting survey of the land to find out the encroachment and fixed up boundaries. Accordingly, the Mandal Revenue Officer deputed Mandal Surveyor, PW-6 to conduct survey. PW-6 visited the land on 18.10.2004 and conducted survey. Later, on 20.10.2004, PWs-1 to 3 went to their land at about 7.00 AM and raised bunds to safeguard their land as per the boundaries fixed up by the Mandal Surveyor. The appellants/A1 to A4 at about 8.00 AM

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came to there, trespassed into the land, obstructed PWs-1 to 3 from raising bunds, abused PWs-1 to 3 in many words in the name of caste, which amounts to insulting them in the vicinity of public view. Therefore, PW-1 disgusted to the conduct of the accused, consumed pesticide. He was shifted to the nearby hospital at Venkatagiri. PW-4, the Doctor at the hospital treated him. PW-2 presented a report to PW-5, Assistant Sub-Inspector of Police. He registered Ex.P1 as Ex.P4 FIR. Later, PW-8 conducted the investigation and laid the charge sheet.

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ANALYSIS :

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Reading of the evidence of PWs-1 to 3 would disclose that PWs-1 to 3 and the accused belongs to Kalapadu village. They are having dispute with regard to the land in question. They are making claim and counter claim about the title and possession of the said land. The case of the prosecution is that PWs-1 to 3 are having title and possession over the disputed land. The accused trespassed into the said land. Therefore, as rightly argued by the learned counsel for the appellants, the prosecution to establish the offence under Section 447 IPC, prove that the property is in the possession of PWs-1 to 3 as on the date of offence.

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The prosecution to prove the offence under Section 3(1)(v) of the Act, shall also establish that PWs-1 to 3 were in possession of the disputed land, and that they were wrongfully dispossessed by the accused or the accused interfered with the enjoyment of their rights over the disputed land.

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Section 447 IPC deals with punishment for criminal trespass. Section 441 IPC defines the criminal trespass.

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According to the definition of the criminal trespass, whoever enters into or upon property in the possession of another with intended to commit an offence or to intimidate, insult or annoy any person in possession of such property commits an offence of criminal trespass. So, the prosecution invariably shall prove that PWs-1 to 3 are in possession of the land in dispute, on date of offence.

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Section 3(1)(v) of the SCs & STs (PoA) Act, 1989 would speak that whoever not being a member of a Scheduled Caste or Scheduled Tribe, wrongfully dispossess a member of a Scheduled Caste or Scheduled Tribe from his land or premises over interferes with the enjoyment of his rights whoever any land, premises or water shall be punishable as laid down under the Section.

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Therefore, this provision also deals with possession of the land or premises on the date of offence.

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The prosecution examined PWs-1 to 3. PW-1 and PW-3 are the sons of the PW-2. They deposed that the disputed land belongs to them. They did not say as to how the land devolved upon them or how they acquired title, right, interest over the land. They did not depose how long they are in possession of the land or how they come into possession of the land. No iota of documentary evidence is placed on record by the prosecution. The best evidence to prove title, right, interest or possession over immovable property i.e., land or premises would be the documentary evidence like sale deeds, conveyance deeds, patta granted or issued by the Government etc. It is not the case of the prosecution that PWs-1 to 3 are not in possession of any such documents to prove their title, right or interest in the property. The prosecution did not come with any explanation much less reasonable explanation why the best evidence was not placed before the Court to prove the title or possession of the victim over the disputed land.

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The only evidence placed on record by the prosecution to support the oral statements of PWs-1 to 3 is that of the Mandal

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Surveyor, PW-6. Perusal of the evidence of PW-6 would show that he visited the land and surveyed the land. Nothing is made out from his testimony as to how he concludes that the disputed land belongs to the victim and that it is in the possession of the victim. He did not depose anything about the documents verified by him, at the time of survey, to support his statement that the disputed land is in possession of the victim.

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The prosecution also did not place the survey report along with documents relied on by the surveyor regarding the survey conducted by him to say that the disputed property belongs to PWs-1 to 3 and they are in possession of the land on the date of incident on 20.10.2004. Therefore, as rightly argued by the learned counsel for the appellants, the evidence of the Surveyor will not improve the case of the prosecution in any manner. It will not lead the Court to come to a conclusion that the land under dispute belongs to the victim, and that victim was in possession of the land as on the date of incident to say that accused trespassed into the said land in possession of the victim or dispossess the victim from the land as alleged by the prosecution.

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Therefore, in the light of foregoing discussion, this Court has no hesitation for coming to a conclusion that there is no evidence

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on record to prove the case of the prosecution that the disputed land belongs to victim and that the victim was in possession of the disputed land as on the date of incident in the case. Further, that the appellants/A1 to A4 trespassed into the land in possession of the victim or dispossess the victim from the said land.

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Unfortunately, the learned trial Court failed to consider the above aspects and based its opinion only on the oral testimony of PWs-1 to 3, who are having dispute with the accused regarding title and possession of the land. Therefore, this Court is of the considered opinion that the finding of the trial Court that prosecution proved the offence under Section 447 IPC and Section 3(1)(v) of SCs & STs (PoA) Act, 1989, is not sustainable either on facts or in law. Hence, it is liable to be set aside.

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When coming to the case of the prosecution, the appellants/A1 to A4 committed the offence under Section 3(1)(x) of SCs & STs (PoA) Act, 1989, on 20.10.2004 at 8.00 pm within public view in the fields. The learned trial Court found the appellants/A1 to A4 guilty for this charge also.

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Perusal of the evidence of PWs-1 to 3 would disclose that PWs-1 and 3 are brothers, PW-2 is the mother of PWs-1 and 3. They are all having dispute with the accused in respect of the land

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in possession since long time prior to the date of offence. PW-2 presented Ex.P1 report to the police, which was registered as Ex.P4 FIR by PW-5. Many words were mentioned in Ex.P1 to say that the accused abused them uttering those words to attract the word insult as mentioned in Section 3(1)(v) of the SCs & STs (PoA) Act, 1989. But, in the evidence of PWs-1 to 3, none of them restated those words in their testimony before the Court to say that the accused uttered those words and therefore, abused them in the name of caste. They simply stated the accused abused them.

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It is pertinent to note down that the prosecution cited three independent witnesses saying that the accused abused PWs-1 to 3 in the presence of said witnesses in the fields to say that those abuses were uttered in the public view. Surprisingly, the prosecution without any reason, much less tenable reason, to give up the said witnesses. The learned trial Court also did not react at that time as to why the prosecution was giving up those important witnesses. The record does not disclose any reasons as to why and under what circumstances those witnesses were given up by the prosecution . Probably, the prosecution was under the impression that if they were examined, they may speak the truth.

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In those circumstances mentioned above, this Court is of the considered opinion that the prosecution failed to prove the offence under Section 3(1)(v) of SCs & STs (PoA) Act, 1989 also with convincing evidence i.e., beyond reasonable doubt. The trial Court failed to consider the above circumstances and simply relied on oral testimony of PWs-1 to 3 and came to an opinion that prosecution proved the offence.

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In those circumstances this court is of the considered opinion that the finding of the trial Court on the said aspect also not sustainable either on facts or in law.

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CONCLUSION :

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In the light forgoing discussion, the appeal be allowed, setting aside the judgment of the learned Special Court.

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RESULT :

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In the result, the Criminal Appeal is allowed. The Judgment of the learned Sessions Judge for Trial of Offences under the SCs & STs (PoA) Act, 1989-cum-V Additional Sessions Judge, Nellore, dated 22.09.2009 passed in S.C.No.36/2006 is set-aside. The appellants/A-1 to A-4 are found not guilty for the offence under Section 447 of IPC and under Sections 3(1)(v) and 3(1)(x) of SCs & STs (PoA) Act, 1989. Accordingly, the appellants/A-1 to A-4 are

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acquitted. The fine amount if any, paid by the appellants/accused shall be refunded to them, in accordance with law. This judgment

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be certified to the Trial Court, as per Section 405 of Cr.P.C.

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As a sequel, miscellaneous applications pending, if any,

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shall stand closed.