Allowed

Kotha Uday Kumar, v. The State through D.S.P.Cbcid Pcr Cell, Warangal

Telangana HC1 Jul 2013CRLA/417/2006

Case brief

AI extract

What is this about?

The High Court allowed the appellant's criminal appeal against conviction under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, holding that there was no evidence proving the appellant dominated the victim's will to exploit her sexually.

What did the court decide?

Conviction and sentence under Section 3 (1) (xii) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, set aside; appellant acquitted.

Kotha Uday Kumar, Vs The State through D.S.P.Cbcid Pcr… — Caste Atrocities | Telangana HC (2013)

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THE HONOURABLE SRI JUSTICE RAJA ELANGO

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CRIMINAL APPEAL No.417 OF 2006

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DATED 1^st JULY, 2013.

BETWEEN :

K.Uday Kumar

.. Appellant-A.1

and

The State

..Respondent

THE HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.417 OF 2006

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JUDGMENT:

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Appellant-accused No.1 preferred the present Criminal Appeal by invoking the provision under Section 374 (2) of the Code of Criminal Procedure (in short ‘Cr.P.C.’) challenging the judgment dated 02.03.2006 rendered in Sessions Case No.516 of 2005 by the Special Sessions Judge for Trial of offences under SCs & STs (POA) Act, Karimnagar, whereby and whereunder the learned trial Judge convicted the appellant under Section 235 (2) Cr.P.C. for an offence punishable under Section 3 (1) (xii) The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short ‘the Act’) while acquitting A.1 to A.8 for the offence punishable under Section 3 (1) (x) of the Act and sentencing A.1 to undergo rigorous imprisonment for five years and to pay fine of Rs.10,000/-.

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Case of the prosecution, in brief, is that A.1 with a promise of marrying the victim (P.W.1) took her to Secunderabad on 17.03.2003, lived with her in a rented room for about 23 days. Further, on 10.04.2003 A.3, A.6 and A.7 went to Secunderabad, abused P.W.1 in filthy language when she was alone, took A.1 along with them leaving P.W.1 to her fate. Subsequently, a panchayath was conducted wherein except A.1 other accused refused the marriage of P.W.1 with

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A.1 and at the intervention of Police on 16.04.2003 A.1 married P.W.1. On the next day of marriage, A.1 went to see his mother, who was unwell. While so, on the same day when P.W.1 went to the bore well for fetching water, all the accused insulted her by taking her caste name.

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Basing on the report of P.W.1, Police registered a case and after completion of investigation, Police filed charge sheet against all the accused for the offence punishable under Sections 3 (1) (x) and 3 (1) (xii) of the Act.

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The trial Court framed charge under Sections 3 (1) (x) and 3 (1) (xii) of the Act against the accused wherein they pleaded not guilty and claimed for trial.

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In order to prove the guilt of the accused, Prosecution got examined PWs 1 to 19 and marked Exs.P.1 to P.18-A. When examined under Section 313 Cr.P.C. also accused denied the incriminating evidence read over to them. On their behalf, D.Ws.1 to 4 were examined and Exs.D.1 and D.2 were marked. After appraising the entire evidence on record, the learned trial Judge convicted A.1 alone as stated above.

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In this case, P.W.1 is the victim, P.W.2 is her father, P.W.3 is her brother, P.W.4 is the caste elder, P.W.5 is the person who attended the marriage of A.1 and P.W.1 and P.W.6 is the Pujari, who performed the said marriage, P.W.7 is the independent witness to the incident occurred on 17.04.2003, P.W.8 is the person who arranged accommodation to the couple in the house of P.Ws.17 and 18. PWs 10 to 16 are the other official witnesses, doctors and investigation officers respectively.

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The charges framed by the trial Court are as follows:

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“Firstly:- That you A.1 to A.8 on 10^th day of April, 2003 not being member of any Scheduled caste or Scheduled tribe, intentionally insulted or intimidated Lw.1 Manjula, W/o.Kotha Uday Kumar and a member of scheduled caste Maala (Maadiga) by abusing him taking her caste in abusive language with intent to humiliate her in a place

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within public view and thereby committed an offence punishable u/s.3 (1) (x) of SCs and STs (POA) Act and within my cognisance.

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Secondly:- That you A.1 on the same day, time and place not being a member of a scheduled caste or scheduled tribe and being in the position to dominate the will of a woman Lw.1 Manjula belonging to Scheduled caste (Madiga) used that position to exploit her sexually to which she would not have otherwise agreed and thereby committed an offence punishable u/s.3 (1) (xii) of SCs And STs (POA) Act my cognisance.

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In this type of cases, this Court is of the view that mere appreciation of evidence of aggrieved person would be suffice to decide the issue.

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For better understating of the matter, the entire evidence of P.W.1-victim is hereby re-produced:

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“I am a resident of Kummarikunta village of Julapally village. I belong to Mala Community of Scheduled Caste. I know all the Accused, who belong to Munnuru Kapu Caste. I studied upto Intermediate Second Year. A-1 failed his 10^th Class Exam. Myself and A-1 studied in the same village in different schools. At that time, Accused met me often and told me that he loves me. I wrote 10^th Class Exam and passed out and A-1 failed 10^th Class. After that, he was running an auto. I joined Intermediate at Peddapally. He continued to meet me. On one day, he told me that he informed his parents for marrying me, but they did not agree. On 17-03-2003, A-1 took me to Secunderabad on the promise of marrying me. Myself and A-1 went to the house of one Manikya Rao in Malkaram village, who is known to both of us. There, Manikya Rao (LW-13) told us that if we stay in his house, my parents and the parents of A-1 will scold him, therefore, he took us to the village Mallegudem and there hired the house of Shyam Sundar and there myself and A-1 stayed together. There I asked A-1 that he brought with a promise to marry and before marriage let us not have any sexual relationship. Then, A-1 told me that since he brought me for marriage, seeing a good day, he will marry me and till such time we can live together and have sexual enjoyment.

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Saying so, myself and A-1 stayed together in the

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house of Shyam Sunder for about 23 days. On 10-042003 A-3, A-6 and A-7 came to our house along with Manikya Rao. I was alone in the house. They asked me where A-2 went and I told them that A-2 went for work at CRPF Camp. Then, A-3, A-6 and A-7 insulted me by saying “MAADIGA LANJA MANNEPU LANJA MAVONII THECHI PETTUKUNNAVA EKKADUNNADU”. On my information, they went to CRPF Camp and brought A-1 to the house. Then, A-1 was taken away by A-3, A-6 and A- 7 leaving me at Mallegudem village. I stayed in that house for two days. My brother LW-4 came to know my address and he came to me along with one Laxman. My brother brought me back to our village Kummarikunta. Then, we approached the elders Vadloori Bheemaiah (LW-6), Muthyala Pochaiah (LW-5) and others. The elders called A-1 and his parents. Except A-1, all other accused came to the elders. Elders questioned them for the A-1 conduct. Then, all the accused, except A-1, stated that no marriage will be performed as our castes are different and it is not possible to mix honey and water. They went away.

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Then, we went to Julapalli Police Station and narrated the story to Sub-Inspector of Police and he called Accused. All the accused came to the Police Station. There, SI questioned accused and A-1 agreed to marry me. But, A-2 and A-4 did not agree for the marriage, because A-1 agreed, A-2 and A-4 asked us to sign on the papers relinquishing our right in the properties. Myself and A-1 signed on the paper. One Lachaiah, Julapalli Constable scribed that document. Except, A-1 others left from Police Station. Around 10-00 p.m. on that day, my parents and my village people took me and A-1 to the Peddapur village Laxmi Narsimha Swamy Temple and there Pujari (LW-9) performed our marriage. At that time, photos were taken and video was also taken.

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Then, we all came to our house in the night itself.

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In the morning, some person came and told A-1 that A- 4 wept in the entire night and was not well. Then, my brother (LW-4) took A-1 to his house and dropped him there. There was a bore well in front of the house of Accused No.1. I went to bore well for fetching water. Then, all the accused were present in their house. All the accused except A-1 scolded me by saying ‘”MAADIGA LANJA MANNEPU LANJA DONGA LANJA GATHILENI MUNDA NUVVU RENDU LAKSHALA KATNAM THECHEDANIVI NAA KODUKU NEEKU DORIKADA”.

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A-1 did not object their scolding me. I went home weeping. I told my parents about the abuses at the bore well and they asked me to have patience. A-1 returned at night to my house. He stayed in my parents house with me for two days. At that time he told me that his people were saying that I cannot give Rs.2,00,000/- as dowry. After two days h left my house. Again after two days, A-1 met me on the way, and I asked him why he was not turning up and A-1 stated that he is not interested to marry me and because of the Police, he agreed on that day. The parents of A-1 (A-2 and A-4) by showing the property to him, prevented him from joining me. Thereafter, I complained to the Police. After waiting for sometime, I lodged a report to Police on 15-05-2003. The report is Ex.P.1. Sub Divisional Police Officer, Peddapally examined me. Thereafter, C.B.C.I.D. Police also examined and recorded my statement.”

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It would be pertinent to note down Section 3 (1) (xii) of the Act, which is as follows:

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“Whoever being in a position to dominate the will of a woman belonging to a Scheduled Caste or a Scheduled Tribe and uses that position to exploit her sexually to which she would not have otherwise agreed, is punishable”

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After a careful perusal of the above referred provision of law, this Court is of the view that the Prosecution should prove the following ingredients through the evidence of the victim for bringing home the guilt of the appellant:

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1) the appellant should be in a position to dominate the will of the victim;

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2) victim should belong to Scheduled Caste or Scheduled Tribe and the appellant by using that position should exploit her sexually; and

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3) if the appellant is not in such position, the victim should not have agreed for the same.

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In the present case, it is evident from the record that A.1 is an auto driver. He also had a love affair with P.W.1-victim for a long time. Even though the same was objected by the elders of A.1 family, due to

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Panchayath, the marriage of A.1 and P.W.1 was also performed in a temple. Subsequent to the marriage, the appellant could not lead marital life because of the intervention of the elders. However, it is also evident that the appellant is not a person to dominate the aggrieved person and he has not used such a position to exploit the victim. In the absence of such ingredients, there cannot be any conviction against the appellant for the offence under Section 3 (1) (xii) of the Act. Having sexual intercourse and refusing to marry would attract some other penal provisions, but not the provisions under the Act. Hence, the conviction and sentence imposed on the appellant need to be interfered with.

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Therefore, the Criminal Appeal is allowed by setting aside the conviction and sentence imposed on the appellant by the trial Court and he is acquitted of the charges levelled against him. Fine amount paid by the appellant, if any, be returned to him. Miscellaneous petitions pending in this appeal, if any, shall stand closed.

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________________________ JUSTICE RAJA ELANGO

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Date : 01.07.2013 sur

Kotha Uday Kumar, v. The State through D.S.P.Cbcid Pcr Cell, Warangal

Case brief

What is this about?

What did the court decide?

Kotha Uday Kumar, v. The State through D.S.P.Cbcid Pcr Cell, Warangal

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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