Dr. V.R.K. Krupa Sagar, J.

1. In this Criminal Appeal filed under Section 374 of Code of Criminal Procedure, the conviction of the ten (10) appellants/A1 to A10 for the offences under Sections 3(1)(x) of Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989 and Section 148 IPC is called in question. Crime No. 28 of 2006 of Tallapudi Police Station of West Godavari District was investigated into by the Sub-Divisional Police Officer, Kovvur. After conclusion of investigation a police report under Section 173 of Code of Criminal Procedure was filed. After due trial, the learned Special Judge for Trial of Cases under SCs & STs (POA) Act, West Godavari, Eluru in SCs & STs Session Case No. 31 of 2007 found all the ten (10) accused guilty by a judgment dated 30.01.2009 and convicted them and sentenced them. Each of the accused was sentenced to undergo rigorous imprisonment for six (6) months and pay a fine of Rs. 500/-, with a default sentence of simple imprisonment for one (1) month for the offence under Section 3(1)(x) of SCs and STs (POA) Act. Each of the accused was further convicted and sentenced to undergo rigorous imprisonment for six (6) months and to pay a fine of Rs. 500/- with a default sentence of simple imprisonment for one (1) month for the offence under Section 148 IPC. Both the sentences were directed to run concurrently. Set-off in terms of Section 428 Cr.P.C. was also prescribed. It may be noted that by the same judgment the learned Special Judge found A2 not guilty for the offence under Section 324 IPC and found A1, A3 to A10 not guilty for the offence under Sections 324 r/w. 149 IPC and found A1 to A10 not guilty for the offence under Section 506(ii) IPC and accordingly they were acquitted.

2. As against the acquittal on those charges, State has been content and no further proceedings was taken up by the State. From the record a few facts emerged undisputed.

Tirugudumetta Village in West Godavari District has inhabitation of about 1500 people belonging to Mala Caste/Scheduled Caste and about 100 people of Gowda Caste/Non Scheduled Caste and Non Scheduled Tribes. There are about four or five churches in the small village. This village is at a distance of 7 Kms south-west of the jurisdictional police station, namely, Tallapudi police station. April 14th is a matter of pride and celebration for every one as it is the birth day of Dr. B.R. Ambedkar. In Tirugudumetta Village celebrations on this occasion take place for about 10 days starting from 14th April. This has been the usual practice. Two prominent political parties have their own supporters in this village. In this village there are also inhabitants who belong to Madiga Caste/Scheduled Caste. There were occasions when Madiga caste people filed criminal cases against Mala caste people including one of the prime witnesses in this case/Pw. 1. Other than the present atrocity case, similar atrocity cases was filed against others in the village which include a case filed against Mr. A. Eswarudu and that case was filed by the husband of another prime witness/Pw. 2. These facts remained undisputed on both sides.

3. The case alleged was that, on 22.04.2006 at 10-00 PM in the night, about 15 men and about 20 to 30 women gathered in the village and all of them belong to Mala caste and they gathered on a cement road that passes through the residential houses of the villagers. In the same vicinity the houses of all the ten accused who belong to Gowda caste are also there. The men and women of scheduled caste gathered there for the purpose of discussing the ideologies of Dr. B.R. Ambedkar and the importance of unity among people. Part of this discussion included as to how the celebration of Dr. B.R. Ambedkar jayanthi is to be held next year. By 22.04.2006 they have still been conducting the jayanthi celebrations which commenced on 14.04.2006.

4. It is at 10-00 PM on 22.04.2006 the crime incident allegedly occurred. Reporting this crime incident 21 persons belonging to Scheduled caste lodged Ex. P1 written information to police and FIR/Ex. P5 was registered. During the course of investigation witnesses were examined, rough sketch of scene of offence was prepared/Ex. P4. The caste certificates of victims/PWs. 1 to 5 were obtained under Ex. P2. A woman was allegedly injured and injured woman is PW. 2 and she was subjected to medical examination and her wound certificate is Ex. P3. Doctor who treated the wounded PW. 2 is PW. 7. The M.R.O. who issued caste certificate is PW. 6. The S.D.P.O. who received copy of F.I.R. and examined few witnesses is PW. 8. The Sub-Inspector Police Officer who registered F.I.R is PW. 9. All of them are not witnesses to the crime incident. They are witnesses for post crime events. PWs. 1 to 5 are the direct witness to the crime incident. It is this evidence with which prosecution intended to prove the charges leveled against the accused which are five in number. Learned Special Sessions Judge charged the accused as mentioned below:

Charge No. 1 Section 148 IPC -- A1 to A10

Charge No. 2 Section 324 IPC -- A2

Charge No. 3 Section 149 r/w. 324 IPC -- A1, A3 to A10

Charge No. 4 Section 506(ii) IPC -- A1 to A10

Charge No. 5 Section 3(1)(x) of Scs and STs (POA) Act -- A1 to A10

Witnesses spoke to their versions and they were subjected to cross-examination. The principle defences raised by the accused during the course of trial are that, in the village there are political parties and political groups and rivalry has been there between the two groups and the accused party belonged to one political party while the prosecution witnesses belonged to another political party. Out of political rivalry, false case is foisted. That in pursuance of Dr. B.R. Ambedkar jayanthi as celebrations has been going on Mala caste people arranged the programme of recording dance which spoils the youth and the rest of villagers expressed their strong protest against such event in the village and that was disliked and a false case is foisted. That the prosecution witnesses or at least some of them are using their caste as a means of earnings and they have been initiating this type of atrocity cases only for the purpose of receiving compensation from the Government. No defence evidence was adduced in proof of the defence contentions. However, during the course of cross examination of prosecution witnesses the existence of political parties and both sides belonging different political groups and earlier initiation of atrocity cases were admitted.

5. It is on evaluation of the rival contentions and on consideration of the entire evidence on record in a properly considered judgment the learned Special Sessions Judge found these accused not guilty on three charges and found them guilty for two charges. It is that conviction which is challenged here and this being the first appeal, the evidence is required to be scrutinized and the reasoning of the learned Special Sessions Judge has to be evaluated.

6. Ex. P1 is the written information which became Ex. P5 F.I.R. As per Ex. P1 the crime incident occurred at 10-00 PM on 22.04.2006. The endorsement of Station House Officer and the printed FIR Ex. P5 shows that, PW. 9 received at 1-30 PM on the next day ie., 23.04.2006. The distance between crime incident and the police station is 7 Kms. The crime incident occurred at 10-00 Pm in the night and about 15½ hours thereafter and much after the sun rise and after noon FIR was lodged. This FIR was received by the jurisdictional Magistrate not on the date of its registration but on the next day ie., 24.04.2006 at 10-30 AM. The travel time for police from the police station to the jurisdictional Magistrate is stated to be 40 minutes according to PW. 9 the F.I.R. issuing Sub-Inspector of Police. Thus on the aspect of delay in lodging FIR and dispatching FIR there were facts and whether the delay was not explained or was explained was one question that emerged and argued before the trial Court. Learned trial Court recorded its finding that though PW. 8 the investigating/Sub-Divisional Police Officer stated that he did not find out the cause of delay in lodging the FIR, in dispatching FIR, the learned Special Sessions Judge recorded that the evidence did not indicate any manipulation of facts and therefore the delay had no way effected the truth of the prosecution version.

7. PW. 2 suffered injuries in this crime incident and she in her evidence spoke about these injuries stating that using a stick A2 beat her. Other witnesses also deposed on similar lines. PW. 7 the doctor stated that, he examined her at 2-35 PM on 23.04.2006 and found a lacerated injury on the right side of the face near right eye-brow for her and it was simple injury and could be caused using blunt object like a stick and such injury could also be caused if the individual happen to fall on a blunt object. According to this medical expert, the injury must have occurred at any time below 12 hours from the time of his examination. Thus, it should have occurred on or before 2-35 AM on 23.04.2006. However, the evidence of witnesses was, it occurred somewhere around 10-00 PM on 22.04.2006. At page 12 of the impugned judgment, the learned Special Sessions Judge, discussed the entire evidence, with reference to these injuries on PW. 2 and recorded that the case diary was found physically corrected as at one place the witnesses mentioned as (knife) and that was corrected as (stick). It also recorded that in Ex. P1 written information this particular overt act was not attributed to A2. On the other hand, it was mentioned there that A2 was holding a knife but according to PW. 2, A2 beat her with a stick and it recorded that PWs. 3 to 5 did not say about the stick being used by A2 and causing hurt to PW. 2. It was in those circumstances, learned Special Sessions Judge felt that the evidence on facts led to many doubts and therefore granted benefit of doubt to the accused and found the accused not guilty for the charges concerning Section 324 IPC and Section 324 r/w. 149 IPC.

8. One of the allegations was that these accused threatened to burn down the huts of mala caste people and thereby created huge panic among them. On analysis of evidence at Page 16 and 17 of its judgment the learned Special Sessions Judge recorded that on such charge except one statement from PW. 1 during the course of trial no other witness even whispered about it. Therefore, he found all the accused not guilty for the charges under Section 506(ii) IPC.

9. As such, on these acquittals and this appreciation of evidence there is no more controversy raised in this appeal on either side.

10. In Ex. P1 written information it is mentioned that while the Scheduled Caste people have been discussing the matters loudly in the night, these accused came upon them with sticks in their hands and abused them and started beating these scores of people indiscriminately and that resulted in serious injuries to several people including bleeding injuries to PW. 2. The words attributed to accused are mentioned in Ex. P1. They are required to be recorded here:

"This content is in vernacular language. Kindly email us at info@legitquest.com for this content."

11. It is this part of the incident that resulted in framing charge under Section 3(1)(x) of SCs and STs (POA) Act. In proof of it PW. 1 in his evidence stated that.

"This content is in vernacular language. Kindly email us at info@legitquest.com for this content."

12. Before the learned trial Court, on the above referred evidence, defence contended variations and inconsistencies and it was also contended that it is impossible for all the ten accused to say the same words at the same time and in the same manner. At page 16 of the impugned judgment the learned Special Sessions Judge recorded that he was not impressed with this argument and stated that all the accused armed with sticks and knives abused and on an overall consideration of evidence of PWs. 1 to 5 it could conclude that A1 to A10 intentionally insulted PWs. 1 to 5 by abusing them in their caste name and this occurred within the public view and therefore the charge under Section 3(1)(x) of SCs and STs (POA) Act stood established.

13. It is against that various grounds are urged in this appeal. It is stated that on the same facts and same evidence when the accused were acquitted on three counts they should have been acquitted for the rest of two counts also. But the trial Court erred and convicted them on two counts. That the evidence of PWs. 1 to 5 is artificial and un-natural and also discrepant in material particulars. The delay in lodging F.I.R. has also to be considered in the light of such discrepant versions which the trial Court failed too.

14. As against it, the learned Special Assistant Public Prosecutor submits that in such caste atrocities case when five witnesses deposed there should be no lenience and the learned trial Court properly found the truth in the case of prosecution and therefore the impugned judgment does not deserve any interference.

15. On considering the rival submissions and the material on record, the point that falls for consideration is:-

"Whether there is no credible evidence proving caste abuse and rioting and the learned trial Court committed error in ignoring vital principles of appreciation of evidence"

16. POINT:-

It has been the principle that every accused is presumed to be innocent. What is alleged by the prosecution has to be proved by the prosecution. Poof of allegation is through direct evidence, circumstantial evidence, material evidence and scientific evidence. Hurling caste abuses and demeaning the people calling them by caste name are social ills. To say that a fact is proved the evidence put-fourth in that regard must enable the Court that in given facts and circumstances such facts existed or it was certainly probable that it should have existed. To reach to such conclusions test of a reasonable prudent man is applied. The credibility of a witness is mostly considered on its consistencies. When one witness speaks a version that differs from the version of a co-witness then to a reasonable prudent person there is always a lingering doubt as to whether the incident occurred in the manner that is spoken to by one witness which does not tally to the version of other witness. In the case at hand, as noticed earlier what occurred at the scene of offence with regard to the caste abuse finds place in Ex. P1 signed by 21 individuals which include PWs. 1 to 5. (Pw. 2 claims to have signed but there is a finding of the trial Court that it does not bare the signature of PW. 2). To begin with, the question that normally crops up is - is it ever possible for ten accused to say in chorus the same thing in the same manner with the same intent and the same rhythm. When twenty one people say that ten accused similarly uttered same words against them, the immediate question is, has that been ever observed in one's common life. The abuses and other words used deriding the people are not standard version of a poem or a verse. On abuses one cannot concedes so much premeditation at least with reference to the words that are to be employed in abusing a person. Judicial wisdom on this aspect has been clear. In Gara Yesuobu and Others vs. State of A.P. rep by its Public Prosecutor, Hyderabad and Others 2005(1) ALT (Criminal) Page 213 (A.P.). Budapap and others vs. State of A.P. rep. by Public Prosecutor High Court of A.P. Hyderabad and another 2007(2) ALT (Criminal) Page 106 (A.P).

17. In both the cases when large number of accused were alleged to have uttered same caste abuses it was found that it was impossible to believe that all accused in chorus could have uttered the same words at the same time. Be that as it may. At the trial, the words uttered by accused which really constituted the offence were required to be recaptured and spoken to by witness. On this aspect each witness gave a reproduction of what he heard which differs from what the other witness recounted. Thus, the version of one witness does not confirm to the version of other witness. At page 15 of the impugned judgment, the learned Special Sessions Judge, observed that there are such discrepancies in the versions of PWs. 1 to 5 with reference to the actual words spoken against them by the accused. But according to learned trial Judge, they are normal discrepancies. This view of the learned trial Judge allowed him to record conviction. It is very difficult to approve the reasoning of the learned Special Sessions Judge when he recorded that the discrepancies are normal. The constituting element for proving the charge is the intentional insult. What words employed by the accused resulted in insult is the very heart of the matter. When the insults themselves are not established and when the insults are recounted differently by different witnesses and the insults recounted in sworn evidence vary with insults that were recorded in Ex. P1 then there is no consistent evidence led by prosecution in proof of insults. While giving concession to fading of memory, one could sympathizes with a witness but this sympathy should not extend to the stage where the inconsistent versions could be considered as consistent versions and what was quite improbable to happen being considered as quite possible to happen. In view of the discrepant evidence concerning insults and in view of the certain improbability of ten accused speaking in chorus the same caste abuses and in view of the principles laid down in the above referred rulings, this Court finds that the evidence on record has not established the charges beyond reasonable doubt. The approach of the learned trial Judge in noticing the defects but ignoring to consider them in a legal manner cannot be approved. Point is answered in favour of the appellants.

18. In the result, the Criminal Appeal is allowed. The conviction and sentence recorded against the appellants/Accused Nos. 1 to 10 in the judgment dated 30.01.2009 of the learned Special Judge for Trial of Cases under SCs & STs (POA) Act, West Godavari in SCs & STs Sessions Case No. 31 of 2007 for the offence punishable under Section 3(1)(x) of SCs and STs (POA) Act and Section 148 IPC is set aside and they are acquitted for the said offence. Fine amount, if any, paid by the appellants/Accused Nos. 1 to 10 shall be refunded to them.

As a sequel, miscellaneous applications pending, if any, shall stand closed.