Judgment:
S.L. Kochar, J.
1. Being dissatisfied with the judgment dated 14-2-2003 rendered in Special Sessions Trial No. 29/2002 by the learned Special Sessions Judge, Ratlam, whereby he convicted appellants for the offence punishable under Section 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter called as 'the Act') and sentenced them to suffer rigorous imprisonment for life with fine of Rs. 5,000/- each, in default whereof to undergo R.I. for 5 years. Learned Judge has also convicted appellant No. 1 Amir for the offence punishable under Section 307, IPC and appellant No. 2 Anis for the offence punishable under Section 307/34, IPC and sentenced them to suffer rigourous imprisonment for life with fine of Rs. 5,000/- each, in default whereof to undergo RI for 5 years respectively. The substantive sentences were directed to run concurrently.
2. In brief the prosecution case before the trial Court was that in the night of 7-7-2002 at 10.30 pm. complainant Raju Lashkari was purchasing ground-nut in the market. He was accompanied by his friends Rajesh, Vikki Pahadiya and Bharat Rathore. At that very moment from the hotel of one Devchand, appellants Anis, Amir and their friend Azam Musalman came out and complainant Raju asked whereabouts of Azam from Anis. Anis annoyed on the way of asking of complainant Raju about Azam and told that he was talking in indignified manner. He also delivered threat to kill him. Thereafter complainant was caught hold by appellant No. 2 Anis and appellant No. 1 Amir took out knife and also dealt 5 to 6 blows causing injury at left rib, scapula region, left parietal part of the skull, right jaw etc. His shirt and Baniyan were also cut. Blood was oozing from the wounds. The incident was witnessed by witnesses Rajesh, Vikki and Bharat in electric light. They also tried to save the injured Raju. It was also the prosecution case that prior to this before one day the accused persons demanded money from the complainant and picked up quarrel. When the incident was intervened by witnesses, appellants while delivering threat abused him in the name of his caste and went away. The complainant was taken to the hospital in auto-rickshaw by his friends. In the hospital Dehat Nalish (Ex. P/3) was lodged. Thereafter on that basis First Information Report was registered vide Ex. P/2 in Police Station, Industrial Area. After necessary investigation charge sheet was filed against the appellants for the above mentioned offences. Appellants have pleaded innocence. Therefore, they put on trial. The prosecution has examined as many as 12 witnesses in its support ; whereas appellants have not examined any witness in their defence. The learned trial Court convicted the appellants, as mentioned above. Hence, this appeal.
3. We have heard Shri Jaisingh, learned Senior Advocate instructed by Shri Vivek Singh for appellant No. 1 Amir; Shri Sanjay Sharma, learned counsel for appellant No. 2 Anis; and Shri Girish Desai, learnedDeputy Advocate General for Respondent/State and also perused the entire record carefully.
4. The contention of the learned counsel for the appellants is in two folds. The first is that offence punishable under Section 3(2)(v) of the Act is not made out because the complainant Raju (PW-4) was not assaulted on the ground that he was a member of a scheduled castes or scheduled tribes community. The second is that the offence under Section 307/34, IPC would not be made out against the appellants and appellant No. 2 Anis would not-be vicariously held liable for the act of causing knife injury by appellant No. 1 Amir because appellant No. 1 used the knife all of a sudden taking out the same from his pocket.
5. Learned counsel for the appellants placed reliance in support of their contentions on the judgment passed in Masumsha Hasasha Musalman v. State of Maharashtra (2000) 3 SCC 557 : (AIR 2000 SC 1876); Sukhdev Giri v. State of Orissa, 2003 (1) MPWN 59 (SC); and Anil Kumar and Ors. v. State of M.P., 1978 (1) MPWN 449.
6. On the other hand, Shri Girish Desai, learned Deputy Advocate General for Respondent/State, has supported the prosecution case for the involvement of the appellants in the alleged incident of causing injury to the complainant PW 4 Raju. But at the same time for their conviction under the provisions of the Act in the light of Supreme Court judgment passed in Masumsha (AIR 2000 SC 1876) (supra) as well as the evidence on record, he is also of the opinion that offence under the Act would not be made out against the appellants.
7. To determine the above mentioned contentions of the learned counsel for the parties, we have perused the entire statement of PW 4 injured /complainant Raju @ Ghanshyam. According to his statement the appellants and their friends had visited his house since 2-3 days prior to the date of incident and had asked about his where abouts from his mother. The complainant was having his shop and because of that they were demanding 100 rupees per week as weekly extortion. On the date of incident Vikki Pahadiya, Bharat and Rajesh came to his shop to whom he disclosed the fact of demand of money by the appellants. They suggested him not to give any weekly extortion to them and on meeting, they will talk to them. The complainant and his friends reached in front of the hotel of one Devchand Khatik for purchasing ground-nut. At that juncture Amir, Anis and Azam came out from the hotel and complainant Raju asked whereabouts of Azam on which appellant No. 1 Amir caught him and told him that he was not talking with a respectful manner and threatened him to kill him. Raju tried to run away but was caught by appellant No. 2 Anis. Friends of Raju tried to intervene. At that juncture appellant No. 1 Amir took out knife from his pocket and started assaulting him. He dealt as many as five blows on his person. He received injuries on his left hand, right parietal part of the skull, left lip, left shoulder , left side of the ribs and abdomen. He was immediately taken to the police station by Rajesh and Bharat. He further stated that when after causing injury, the appellants delivered threat by abusing in the name of his caste. His mother also reached on the spot. When they reached in the police station, constable asked them to take him to the hospital first because there was profusing blood oozing. Therefore, he was taken to hospital where in the hospital Dehati Nalish Ex.P/3 was recorded. He was medically examined by PW 7 Dr. Pramod Jhare who found as many as five incised injuries on various parts of the body, out of which Injury No. 4 was stabbed wound at abdomen region and omentum was clearly visible. According to him in paragraph 5 this doctor has given opinion that Injury Nos. 1, 2, 3 and 5 were simple in nature; whereas Injury No. 4 was dangerous to life and he referred to surgical expert for operation. His report is Ex. P/5. The knife, Article 1, was shown to him and he opined that injuries could be caused by the said knife. In this regard he has also given opinion Ex. P/6. The injured was admitted in surgical ward and his admission slip is Ex. P/7. The learned counsel for the parties invited attention of this Court towards paragraph 13 last four lines, as well as paragraph 14 in which this expert witness has stated that in Ex. P/6 he has mentioned the nature of injury as dangerous as per on suggestion given by the constable. While preparing query report Ex. P/6, he did not examine injured. He has also stated that all the injuries on abdomen would not necessarily be dangerous to life unless the same is causing damage to vital organ.
8. We have perused the entire statement of this witness PW-7 Dr. Pramod Jhare as well as number of injuries and blows by which these knife injuries were caused. Injury No. 1 was on the left chick; No. 2 was on left lower chest, No. 3 on left scapula region, No. 4 was on abdomen and omentum was visible. Injury No. 5 was on left chick. Though four injuries were simple in nature but appellant No. 1 Amir has in quick succession one after another caused 5 blows and all were on vital part of the body that shows that he intended to cause death of injured PW-4 Raju but as PW-4 has deposed that the incident was immediately intervened by his friends named Rajesh and Bharat, the appellant No. 1 could not cause more blows and severe injuries to him. He was saved because of intervening factor. Apart from this for determination of intention of the accused, only nature of injury is not a decisive factor. Intention has to be judged from the surrounding circumstances i.e. nature of weapon, nature of injuries; part of the body on which injuries were caused; circumstances in which injuries were caused; motive and other relevant factor. In the present case the appellants were searching the complainant demanding weekly extortion which he was not required to pay, obviously the appellants were acting as a bully in that area and demanding money from the complainant who was a petty shop-vender and he did not want to give money. On the date of incident though he was in the company of three other persons named Rajesh, Vikki Pahadiya and Bharat, even then appellant No. 1 Amir was able to cause him 5 injuries on vital part of the body by knife. If the injured PW-4 Raju would have died because of any of these injuries, the appellant could have been guilty for commission of the offence of murder. Therefore, looking to the statement of the complainant and the eye witness PW-5 Vikki, we are of the firm view that appellant No. 1 Amir is the author of the injuries caused to the injured PW-4 Raju @ Ghanshyam and he had intention to commit his murder but because of intervention by his friends, he was saved. The statement of injured PW-4 Raju and eye-witness PW-5 Vikki are duly corroborate by PW 7 Dr. Pramod Jhare.
9. There is another eye-witness of the incident PW 6 Kalawati, the mother of the injured regarding demand of weekly extortion by the appellants as well as causing injuries by appellant No. 1 Amir to PW-4 Raju. In cross-examination of this witness , nothing substantial has been pointed out which may demolish her testimony. The prosecution witness PW-10 Bharat Rathore, who was also in the company of the injured, according to the prosecution case, has been declared hostile. He has not supported the incident of actual assault but at the same time he has deposed about seeing Raju in injured condition. Raju suffered as many as 5 injuries and thereafter he along with other witnesses took him to the police station and thereafter to the hospital.
10. After over all screening of the prosecution evidence, we are of the opinion that there is sufficient evidence against appellant No. 1 Amir for commission of offence punishable under Section 307 of the IPC. Therefore, we affirm his conviction under this section. So far as the conviction of appellant No. 2 Anis under Section 307/34 of the IPC is concerned, there is lack of evidence on record to establish beyond all reasonable doubt that he was having premeditation, pre-meeting of mind and pre plan for commission of attempt to commit murder of Raju by appellant No. 1 Amir because Amir was not having the knife in his hand and there is no evidence on record that appellant No. 2 Anis was having prior knowledge about possession of knife and its use for causing injury to PW-4 Raju in the incident. The Supreme Court has considered this aspect in the case of Sukhdev Giri (2003 (1) MPWN 59) (supra). In the instant case also there is no evidence that prior to over powering PW-4 Raju by appellant No. 2 Anis, he was having knowledge about appellant No. 1 Amir carrying knife under his garments. Thus he could not be held vicariously liable for the act of appellant No. 1 causing injury by knife. But at the same time he caught hold of Raju injured individually, he is guilty of the commission of offence punishable under Section 323 of the IPC.
11. The next point for consideration is that whether offence punishable under the Act is made out or not in the light of the evidence on record in this case. In view of the statements of PW-4 Raju, PW-5 Vikki and PW-6 Kalawati who have especially stated that Raju was abused by the appellants in the name of his caste i.e. 'CHAMAR'. After causing him injury when they were fleeing away from the place of incident. There is no evidence on record that PW-4 was assaulted on the ground that he belongs to the scheduled caste community. Therefore, the offence under Section 3(2)(v) of the Act would not be made out. Prosecution has to lead positive evidence to bring home the guilt of the appellants under this Act that the appellants had committed 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 community. This ingredient of the offence is not available in the evidence on record.
12. The Supreme Court has occasion to consider this aspect in the case of Masumsha (AIR 2000 SC 1876) (supra) and held (at p. 1879, of AIR):-
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 this case the trial Court erred in convicting the accused-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 a Scheduled Caste.
13. In view of the above mentioned visualisation of law involved in the present case and the evidence available, we are of the opinion that conviction of the appellants under Section 3(2)(v) of the Act is not sustainable. Therefore, same is hereby set aside. Similarly the conviction of appellant No. 2 Anis under Section 307/34 of the IPC is also set aside. Instead he is convicted under Section 323 of the IPC and the conviction of appellant No. 1 Amir under Section 307 of the IPC is affirmed.
14. As regards the sentence, there is no previous criminal antecedents of the appellants. Therefore, looking to the young age of appellant No. 1 Amir, he is sentenced to undergo RI for 4 years for the offence punishable under Section 307 of the IPC with fine of Rs. 10,000/-, in default of fine, further RI for 3 years would meet the ends of justice. Appellant No. 2 Anis is convicted under Section 323 of the IPC and he is sentenced to the period already undergone (two months and ten days). The fine amount if deposited by him be refunded to him. Out of realisation of fine amount from appellant No. 1 Amir, Rs. 8,000/- be paid as compensation to the PW-4 injured/complainant Raju.
15. In the result, this appeal stands allowed in part, in terms indicated above. Appellant No. 2 Anis is on bail. His bail bonds shall stand discharged. Record of the trial Court along with a copy of this judgment be sent to that Court.