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PETITIONER: MASUMSHA HASANASHA MUSALMAN

       Vs.

RESPONDENT: STATE OF MAHARASHTRA

DATE OF JUDGMENT:       24/02/2000

BENCH: S.R.Babu, S.S.M.Quadri

JUDGMENT:

RAJENDRA BABU, J.  :

     The  appellant on being charged by the Sessions Judge, Buldhana  of  having caused grievous injuries to  one  Saoji Gamaji   Jadhav   (the  deceased)   with   Jambiya   (knife) intentionally  and  knowingly that they would result in  his death and thus committed an offence punishable under Section 302  IPC.  He was also charged under Section 3(2)(v) of  the Scheduled  Castes  and the Scheduled Tribes  (Prevention  of Atrocities)  Act,  1989  [hereinafter referred  to  as  the Act].   The  appellant  stood   convicted  of  the  offence punishable  under Section 304 Part II, IPC and sentenced  to suffer rigorous imprisonment for five years.  He was further convicted of the offence punishable under Section 3(2)(v) of the  Act  and sentenced to suffer rigorous imprisonment  for one  year and to pay fine of Rs.1,000/- in default to suffer rigorous  imprisonment for 3 months.  Both the State and the appellant  filed  separate appeals to the High  Court.   The High  Court,  on re-examination of the evidence  on  record, allowed  the  appeal  filed by the State and  convicted  the appellant  for the offence punishable under Section 302  IPC and  sentenced him to suffer rigorous imprisonment for  life and  to pay a fine of Rs.200/- in default to suffer  further rigorous  imprisonment  for one month while maintaining  the conviction of the appellant for the offence punishable under Section  3(2)(v) of the Act.  Both the sentences are  stated to  run  concurrently.   The appeal filed by  the  appellant stood dismissed.  Hence this appeal against the common order made  by  the  High  Court in the  said  two  appeals.   The prosecution  case  as  unfolded  by the  witnesses  is  that between  7  and 8 p.m.  on 25.8.92 Saoji Gamaji  Jadhav  who belongs  to the scheduled caste was done away to death.   It is  stated that the appellant and the deceased are residents of  Nandra  Koli village situate 7 kilometres from  Buldana. On  the  fateful day the deceased returned to the  house  at dusk  and after some time left the house informing his  wife that  he  would be going out for some time and would  return soon  thereafter.   After about half an hour,  the  deceased left  his  home,  the  appellant came to the  house  of  the deceased  and enquired from Deubai {PW-4}, wife of  deceased Saoji  Gamaji  Jadhav.   She  found that  he  was  having  a Jambiya.   On  coming to know from her that her husband  had gone out of the house, the appellant started running through the  lane.   As  the appellant was seen by Deubai  with  the Jambiya,  she  got suspicious and followed him and near  the

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hospital  of Dr.Kalwaghe, she saw the appellant stabbing the deceased.  She stated that the appellant after giving two or three blows with the Jambiya and deceased fell on the ground ran  away.   When  he  left the place, she  found  that  the deceased  was having bleeding injuries and she tried to  tie up  a  cloth  around  the  wound but  in  the  meanwhile  he succumbed  to the injuries.  Thereafter she with the help of the  police  patil went to the Police Station,  Buldana  and lodged  a complaint when the PSI, Shri Oval visited the spot and  after  recording her complaint and registering  a  case conducted  inquest.  When the appellant was in the  custody, he  produced Jambiya.  After completing the investigation  a charge-sheet was laid for the offences stated earlier before the  Jurisdictional Magistrate who committed the same to the Court  of Sessions.  On charges being framed, the  appellant pleaded  not  guilty to the charge and denied having  caused any  injuries  to the deceased or committed murder.  In  the course of evidence, the Defence suggested to the prosecution that  the deceased was under the influence of alcohol and he himself  had  a dagger;  that a scuffle took place  when  he attacked  the appellant, as a result of which he died out of injuries  caused  by  himself;  that the appellant  had  not caused  any injury and that he tried to save himself.  There was  no  dispute that the deceased met with homicidal  death and  this fact is amply established by the medical  evidence on  record.   There  were as many as 10 injuries on  him  as disclosed  by  Dr.  Umesh Nawade {PW-3}, who  conducted  the postmortem  examination.  He found that injuries Nos.  4  to 10  were  only skin deep or abrasions whereas injuries  nos. 1, 2 and 3 were of serious nature.  They are as follows :

       1.  Incised wound, left infra-clavicular region  in middle  of  size  6cm x 2.1/2 cm x 4.1/2 cm.   Edges  gaping blood  oozing  and  blood clots seen.   2.   Incised  gaping wound,  left  infra-axillary region in 4th ICS 1 cm x  1  cm skin deep, blood clots seen.  3.  Incised gaping wound, left posterior axillary line 4cm x 1cm x 2cm deep.  Reddish black colour.  4.  Abrasion left elbow size 3cm x 2cm.  5.  C.L.W. over  left  ulnear head 1cm x 1cm skin deep.   6.   Abrasion just  below  injury  No.  5, 1cm x 1cm.  7.   Abrasion  left posterior  ileo crest 1cm x 1cm.  8.  Abrasion left angle of lower  lip  1cm x 1cm.  9.  Abrasion right orbit out  region 1cm x 1cm.  10.  Abrasion right forehead 1cm x 1cm.

     He  also stated that there is a fracture of the second rib  on the left side in the middle, pleura  incised 5cm  x 1cm;   that  injury  no.   1 was  grievous  injury  and  was sufficient  to cause death in the ordinary course of nature. He  further stated that injury Nos.  2 and 3 could be caused by  the  same weapon and he was definite that injury no.   1 could not be caused due to fall on curved and pointed stone. He,  however,  admitted that injury nos.  2 and 3 were  skin deep  not  affecting  any bone and could be  caused  in  the course  of  a  scuffle and injury no.1 could not  have  been caused on the person holding dagger and sitting on the chest of the victim who caught hold the hands with dagger.

     The trial court accepted the evidence of Deubai {PW-4} and  Manoj {PW-5}.  Manoj corroborated the evidence tendered by  Deubai to the extent of having seen the appellant having a  Jambiya  in his hand when Deubai (PW4) was following  him and  that he found something very suspicious so he  followed both  of them.  That is how he witnessed the scuffle and the injuries  caused  by the appellant to the deceased.   Deubai

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admitted  in  the  course  of her  cross-  examination  that scuffle took place between the appellant and her husband and her husband fell on the ground;  that for considerable time, the  scuffle  went  on;  that while on  some  occasions  the appellant  was  on the ground, on some other  occasions  her husband  was  on  the ground;  that the  appellant  and  the deceased  were  overpowering each other.  PW-5  also  stated that  he saw that in front of the hospital of Dr.   Kalwaghe the deceased coming and the appellant was following him with dagger  and  gave  blows  of dagger on  the  person  of  the deceased.   The  trial court found from these  circumstances that the appellant had no intention to kill the deceased and that  after giving one blow, other injuries had been  caused due to scuffle.  This was amply supported by the evidence of the  Medical Officer that injuries Nos.  2 and 4 to 10 could be  caused in the scuffle, or injuries other than injury no. 1  could  be  caused  due to obstruction  by  the  deceased. Therefore,  it  could  not be inferred  that  the  appellant intended to inflict more injuries than injury no.1.  If this aspect  is  borne  in  mind,  it would  be  clear  that  the appellant had given only one blow with the Jambiya resulting in  his death and, therefore, the trial court found that  it would  not be proper to convict the appellant under  Section 302  IPC.   The  argument relating to  private  defence  was straightaway  rejected  for  there were no injuries  on  the person  of the appellant and the attack had been made by the appellant  himself.  The trial court discarded the  evidence relating  to  discovery  of the weapon and  jacket  for  the reasons  set  forth  in  the order.  The  trial  court  also convicted  the  appellant  for  the  offence  arising  under Section  3(2)(v) of the Act only on the basis that there was no  controversy  that the victim belonged to  the  scheduled caste  and convicted him.  On appeal by the State, the  High Court  is of the view that the present case is not a case of single  injury and there was direct evidence of PWs-4 and  5 in  respect of blows given by the appellant to the  deceased and the mere opinion of the doctor that the injuries Nos.  2 to  10 could be caused during scuffle would not rule out the possibility of causing incised injuries.  On that basis, the High Court was of the opinion that there was an intention to kill  the  deceased and did not agree with the view  of  the trial  court  that  though  the appellant  had  some  grudge against  the  deceased,  he did not intend to kill  him  but inflicted  only a single injury and the other injuries  were caused as a result of scuffle that followed.

     The  findings  of the High Court are  under  challenge before  us.  The learned counsel for the appellant contended that  the  view  taken by the trial court is  justified  and should be accepted and there was no basis for the High Court to  rule out the same.  Further, he pleaded that no case was established for an offence under Section 3(2)(v) of the Act. The  learned  counsel for the State, however, supported  the view taken by the High Court.

     It  is  in  evidence of Deubai (PW-4)  that  when  she followed the appellant, she saw that the appellant went from behind  of  her husband and stabbed him with dagger at  left side  shoulder  and thereafter gave blows of dagger  to  the deceased.   If  she  had been following the  appellant,  she could  not have seen him giving a blow to the deceased  from the  back.   Only  when the scuffle  started  taking  place, injuries  could have been inflicted and she could have  seen those  injuries.  In the circumstances, it is reasonable  to infer  that  only  one  serious injury  was  caused  by  the

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appellant  to the deceased which is injury No.  1 while  all other  injuries,  as opined by the doctor, could  have  been caused during the scuffle.  This appreciation of evidence by the  trial  court stands to reason.  The High Court  brushed aside  the medical evidence to draw an inference that  there was  an intention on the part of the appellant to cause  all the  injuries.  The evidence of the Doctor means that injury Nos.   4 to 10, which are mere abrasions or skin deep, could not  have been caused by him but these abrasions could  have been  caused by falling on the ground and coming in  contact with  a  rough surface.  The probability that  while  injury No.1 could have been inflicted by the appellant, injury Nos. 2  and 3 could have been caused in the course of the scuffle cannot  be ruled out.  In this view of the matter, we  think that  the view taken by the trial court is preferable to the view  taken  by  the  High Court as there  is  a  sufficient cogency  in  the reasoning adopted by the trial court.   The High  Court does not appear to have appreciated this  aspect of the matter at all.

     Section  3(2)(v) of the Act provides that whoever, not being  a  member of a Scheduled Caste or a Scheduled  Tribe, commits  any offence under the Indian Penal Code  punishable with  imprisonment for a term of ten years or more against a person  or  property  on the ground that such  person  is  a member  of  a Scheduled Caste or a Scheduled Tribe  or  such property  belongs  to such member, shall be punishable  with imprisonment  for life and with fine.  In the present  case, there is no evidence at all to the effect that the appellant committed the offence alleged against him on the ground that the deceased is a member of a Scheduled Caste or a Scheduled Tribe.   To attract the provisions of Section 3(2)(v) of the Act,  the sine qua non is that the victim should be a person who  belongs  to a Scheduled Caste or a Scheduled Tribe  and that  the  offence under the Indian Penal Code is  committed against  him  on the basis that such a person belongs  to  a Scheduled  Caste  or a Scheduled Tribe.  In the  absence  of such  ingredients,  no offence under Section 3(2)(v) of  the Act  arises.  In that view of the matter, we think, both the trial  court  and the High Court missed the essence of  this aspect.   In  these circumstances, the conviction under  the aforesaid  provision  by the trial court as well as  by  the High Court ought to be set aside.

     In  the  result, we reverse the judgment of  the  High Court  in  so far as this aspect of the matter is  concerned and  acquit  the appellant of the said charge while  we  set aside  the conviction under Section 302 IPC and restore that of  the trial court imposing a punishment of five years  for an  offence under Section 304, Part II, IPC.  It is  brought to our notice that the appellant has already been in custody for more than five years now.  Therefore he should be set at liberty forthwith.  The appeal is allowed accordingly.