Dhanraj vs State of Rajasthan

Kanwaljit Singh Ahluwalia, J.�In pursuance of the order dated 11.11.2014, the paper-book after preparation, has been sent by the Office, along with the record.

Mr. Manoj Kumar Choudhary, the learned counsel appearing for the applicant/appellant and Mr. N.S. Dhakad, the learned Public Prosecutor appearing for the State, are in agreement that so far as the conviction of the appellant for commission of offence punishable under Section 3(2)(V) of the Scheduled Castes and the Scheduled Tribes [Prevention of Atrocities] Act, 1989 [hereinafter to be referred as the "Act of 1989"] is concerned, the case of the appellant is squarely covered by the judgment rendered by us in D.B. Criminal Appeal No. 945/2004 [Ramkaran Vs. State of Rajasthan], decided on 25.11.2014.

Since the only argument raised by the learned counsel appearing for the appellant is sustainability of the conviction under Section 3(2)(V) of the Act of 1989 and reduction in the sentence, qua offence punishable under Section 326 I.P.C., with the consent of the learned counsel for the parties, we take the appeal itself on the Board for decision as the paper book and the record are available for perusal.

The First Information Report [Exhibit P/26], in the present case, was lodged on the basis of the statement [Exhibit P/1] made by Badrilal [P.W. 3]. On 20.10.2007 at about 03:20 P.M. injured - Badrilal [P.W. 3] was admitted in the Emergency Ward of M.B.S. Hospital, Kota. An information was received at Police Station, Kota on 20.10.2007 at 03:25 P.M. regarding admission of Badrilal. A.S.I. Lalsingh [P.W. 19] reached at the Bed No. 12 of the Emergency Ward and at 06:15 P.M. recorded statement of injured - Badri Lal [P.W. 3].

The statement [Exhibit-P/1], when translated into English reads as under:--

"Today on 20.10.2007 at 08:00 A.M., I had gone to my field to harvest Soybean crops, alongwith labour from the nearby Village. After reaching there, I was sitting in the fields. Labourers were harvesting the crop. At about 02:30 P.M. Dhanraj s/o. Retiram, by caste Keer, resident of Rangpur, along with his brothers - Panachand Keer and Hansraj Keer arrived at my field. Dhanraj Keer asked me to bring water. When I offered him water, then Dhanraj took out sword from his back and gave a blow on my head, then I raised my left hand due to which my left hand was amputated. He again gave another sword blow on my head. I raised my right hand and suffered an injury. Thereafter, I fell on the ground. Thereafter, his two brothers, namely Panachand Keer and Hansraj Keer gave sword blow on my feet. I suffered injuries on my feet. When I started raising hue and cry, other people working in the fields, namely (Gopal Meena, Lathoor, Babulal and Meghraj were attracted to the spot. Seeing them coming accused decamped from the spot. (Sopal Meena, Lathoor, Babulal and Meghraj brought me to the Village. From Village, Gajendra Sharma, Sanjay Sharma and Banwari Lal got me admitted in the hospital. One year ago, I had purchased 1-1/2 bighas land from Retiram by way of registered sale-deed. The sons of Retiram told that since land belong to them, I should return the same. About a month before purchase, Retiram and his brothers Ramkishan Keer and Hariram Mewara had approached me and offered to sell their land. On the asking of Retiram, I had purchased 1-1/2 bighas land by way of registered sale-deed as ban on mutation of land was lifted. Sons of Retiram were dissatisfied with the purchase of land by me. They wanted me to return the land, due to this grudge they have caused me injuries with sword."

A perusal of the First Information Report clearly reveals that no allegations have been levelled to attract the provisions of the Scheduled Castes and the Scheduled Tribes [Prevention of Atrocities] Act, 1989.

It is a simple case of sale and purchase of the land, which was not accepted by the sons of the seller, as they were opposed to the sale of land by their father in favour of the complainant.

In the present case, injury was not caused merely on the ground that the complainant was a member of the Scheduled Tribe. Complainant is Meena, a Scheduled Tribe.

Dr. P.K. Tiwari [P.W. 1] on 20.10.2007 at 03:20 P.M. had examined Badrilal [P.W. 3]. He had found eight injuries on the person of Badrilal [P.W. 3]. Injury No. 1 was amputation of 1/3rd of left arm. It was further stated that the margins of the injury were clean. Injury No. 2 was an incised injury having dimension 8x4 cm. on the right arm. Injury No. 3 was an incised wound measuring 6x4 cm. on the right wrist. Injury No. 4 was an incised wound of size 10x4 cm. on the right leg. Injury No. 5 was an incised wound of 8x6 cm. on the right arm, between third & fourth fingers. Injury No. 6 was an incised wound having dimension 6x4 cm. on the right feet. Injury No. 7 was another incised wound 6x05 cm. on the right thigh and Injury No. 8 was an incised wound 6x1 cm. on the left knee.

Injured - Badrilal, appeared in the witness-box as P.W. 3 and has reiterated as to what was stated by him in the First Information Report. In examination-in-chief also, this witness has not stated anything that injury was caused to him on the ground that he was a member of Scheduled Tribe [Meena].

It is to be noted here that the witness - Badrilal [P.W. 3] belong to the Meena Community, which has been declared as Scheduled Tribe in the State of Rajasthan.

Ramgopal [P.W. 4] was attracted at the spot and he deposed that while working in his field, he had seen accused causing injuries to Badrilal [P.W. 3]. This witness has duly corroborated the testimony of injured Badrilal [P.W. 3].

Shri Manoj Kumar Choudhary, the learned counsel appearing for the appellant, has very fairly submitted that in view of the deposition of the injured in the Court, he will not be able to assail the testimony of injured witness, who is duly corroborated by the other eye-witnesses. Counsel further submitted that except to point out the contradictions, discrepancies and improvements in the testimony of injured and the other eye-witnesses, he has nothing else in his arsenal.

Having heard the learned counsel appearing for the appellant at length and perusing the record, we are of the view that the discrepancies, and contradictions pointed out by Counsel, are not so material that they will impeach the credibility of the witnesses.

One third left forearm of Badrilal [P.W. 3] was amputated. He will be the last person to substitute the person, who has caused him injury. Badrilal [P.W. 3] had suffered a permanent disability. Therefore, his deposition in the Court is truthful.

By way of filing the present appeal, the appellant has assailed the judgment rendered by the Court of Special Judge, S.C./S.T. [Prevention of Atrocities] Kota.

The trial Court, vide its impugned judgment dated 04.04.2009 has held the appellant guilty of offences punishable under Sections 324 and 326 I.P.C., under Section 4/25 of the Arms Act and under Section 3(2)(V) of the Scheduled Castes and the Scheduled Tribes [Prevention of Atrocities] Act, 1989.

Having convicted the appellant of above offences, the trial Court, vide a separate order of even date, had sentenced him as under:--

For offence punishable under Section 324 of Indian Penal Code, appellant was sentenced to undergo two years rigorous imprisonment and pay a fine of Rs. 1000/-, in default thereof to further undergo one month simple imprisonment.

For offence punishable under Section 326 of Indian Penal Code, appellant was sentenced to undergo ten years rigorous imprisonment and pay a fine of Rs. 1000/-, in default thereof to further undergo one month simple imprisonment.

For offence punishable under Section 4/25 of Arms Act, appellant was sentenced to undergo one year rigorous imprisonment and pay a fine of Rs. 1000/-, in default thereof to further undergo one month simple imprisonment.

For offence punishable under Section 3(2)(5) of the Scheduled Castes and the Scheduled Tribes [Prevention of Atrocities] Act, 1989, appellant was sentenced to undergo life imprisonment and pay a fine of Rs. 2000/-, in default thereof to further undergo two months rigorous imprisonment."

All the sentences were ordered to run concurrently.

Shri Choudhary, the learned counsel appearing for the appellant has contended that the conviction of the appellant for commission of the offence punishable under Section 3(2)(V) of the Scheduled Castes and the Scheduled Tribes [Prevention of Atrocities] Act, 1989 cannot be sustained.

In support of this contention, learned counsel has relied upon the judgment rendered by us in the case of Ramkaran [supra], wherein it was held as under:--

Mr. Mehla, the learned counsel for the appellant has vehemently urged that the application of offence under Section 3(2)(v) of ''the Act'' is not attracted. The thrust argument of Mr. Mehla is while committing offence of rape, accused may intend to satisfy his lust, but there is no evidence or assertion by the witness that accused intended to humiliate a member of Scheduled Caste or the offence of rape was committed only on the ground that the prosecutrix belonged to Scheduled Caste community.

The argument raised by Mr. Mehla is not new to this Court. A Division Bench of this Court in the case of Manohar Singh vs. State of Rajasthan reported in 2000(2) RCC 894, in similar circumstances, held as under.--

"10. The doctor opined that from the external injuries, the possibility of rape being committed, cannot be denied. The doctor also seized the ''ghaghra'' of the prosecutrix on which spots of semen were detected. He further stated that the accused Manohar Singh was also examined on 19.12.1996. He was found fit for indulging in sexual intercourse. The prosecution has produced the FSL report dated 2.9.1997, which shows that human semen was found on the ''ghaghra ''. Thus, on careful consideration, we find the testimony of P.W. 8 Mst. Ramila as trustworthy. The learned Judge has rightly held the accused appellant guilty of rape.

The next question, which arises for consideration is whether the conviction of the appellant under Sec. 3(2)(v) of the Act is justified and legal?

We have, recently in a case of Pappu Khan vs. State of Rajasthan, "D.B. Criminal Appeal No. 722/98 decided on 2.9.1999", examined the scope and ambit of Sec. 3(2)(v) of the Act. It is held therein that for the offence under Sec. 3(2)(v) of the Act, beside the ingredients of respective offence of Indian Penal Code, the prosecution is further required to establish that the accused being a person of non S.C./S.T. has committed the crime on a person of S.C./S.T. for the reason that such person belonged to such community or tribe."

The view taken by the Division Bench of this Court was subsequently followed by another Division Bench of this Court in the case of Sohan Singh & Anr. vs. State of Rajasthan reported in 2002(2) Cr.L.R. [Raj.] 1541. Their Lordships, while examining the law laid in Manohar Singh''s case (supra) further to fortify had relied upon the observations of the Hon''ble Apex Court in Masumsha Hasanasha Musalman vs. State of Maharashtra reported in 2000 SCO (Cri) 722. Since their Lordships relying upon the observations of the Hon''ble Apex Court in a very lucid manner had answered the above question. With all reverence to Their Lordships, the relevant portion of the judgment is reproduced as under:

"10. We have considered the rival submissions, and have also gone through the record carefully. We may first take up the sustainability of the conviction u/s. 3(2)(v) of the Act. We may gainfully recapitulate the language of Sec. 3(2)(v) which reads as under.--

"(v) committed 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."

Our attention has been invited by the learned counsel for the appellants, to a recent judgment of Hon''ble the Supreme Court in Masumsha Hasanasha Musalman Vs. State of Maharashtra, , which was a case relating to murder, wherein the accused was convicted for the offence u/s. 304-11 IPC and Sec. 3(2)(v) of the Act, and under the former he was sentenced to 5 years rigorous imprisonment while under the later he was sentenced to life imprisonment. These convictions were confirmed by the High Court. In appeal the Hon''ble Supreme Court noticed that there was no dispute about the deceased dying homicidal death, and considering the nature of injuries, confirmed the conviction u/s. 304-11 IPC. Facts in that case were that between 7.00 and 8.00 p.m. on the fateful day Saoji Gamaji Jadhav, a member of Scheduled Caste, who had returned to his house at dusk, and after some time had 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 of the deceased left his home, the appellant came to the house of the deceased and enquired from his wife about the deceased. At that time the appellant was carrying a ''jambiya ''. On coming to know from her that her husband had gone out of the house, the appellant started running through the lane. The wife getting suspicious followed, and near the hospital of Dr. Kalwaghe, she saw the appellant stabbing the deceased who fell down and died. It is on these facts Hon''ble the Supreme Court has held as under:--

"To attract the provisions of Sec. 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 u/s. 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."

With the above findings the conviction u/s.3(2)(v) was set aside. In our view, the judgment in Masumsha Hasanasha Musalman''s case fully supports the contention of the learned counsel for the appellants, and since in the present case also, there is not an iota of material on record, even to indicate that, either of the offence was committed "on the basis" that the victim belongs to Scheduled Caste. Accordingly, the conviction for the offence, u/s. 3(2)(v) of the Act, is very much required to be set aside."

Recently, another Division Bench of this Court in Subhan Khan Vs. State of Rajasthan, , on similar facts had formulated the same view.

In view of the consistent interpretation of law by various Division Benches of this Court, we called upon Ms. Sonia Shandilya, the learned Public Prosecutor to point out any piece of evidence or material from which we can infer that prosecutrix was subjected to rape on the ground that she was a member of a Scheduled Caste community. The learned Public Prosecutor, however, could not answer our query, as no relevant material is available in the record."

Having heard the learned counsel appearing for the appellant and the learned Public Prosecutor appearing for the State, we are of the view that it is a case of land dispute. The present appellant was aggrieved of sale made by his father in favour of injured-complainant - Badrilal [P.W. 3] and for that reason he had caused injury to the appellant.

In view of legal position noticed by us, which is based upon the view expressed by the three Division Benches of this Court, we are of the view that the conviction of the appellant for commission of offence punishable under Section 3(2)(V) of the Act of 1989 cannot be sustained. Consequently, we set aside the conviction of the appellant on this count.

Counsel appearing for the appellant has submitted that the sentence of ten-years awarded upon the appellant under Section 326 I.P.C. is excessive. Due to injury caused by the appellant, 1/3rd forearm of injured Badrilal [P.W. 3] was amputated, thus he has suffered permanent disability. The occurrence, in the present case, pertains to the year, 2007. The appellant is already in custody from last seven-years and has suffered pain and agony of protracted trial.

Taking sufferance of protracted trial as mitigating circumstances and the nature of injury as aggravated circumstances, we are of the view that the ends of justice will be fully met in case sentence of ten-years awarded to the appellant under Section 326 I.P.C. is reduced to nine-years.

Consequently, we set aside the conviction and the sentence awarded upon the appellant under Section 3(2)(V) of the Act of 1989; and uphold the conviction of appellant for commission of offence punishable under Section 326 I.P.C. and reduce his sentence from ten-years to nine-years. As ordered by the trial Court, sentence awarded under Section 324 I.P.C. and under Section 4/25 of the Arms Act are maintained, they shall run concurrently. The sentence is reduced under Section 326 I.P.C. The sentence of fine and default clause on all the three counts i.e. under Sections 324 and 326 I.P.C. and under Section 4/25 of the Arms Act is maintained.

With the above modification i.e. acquittal of the appellant for offence under Section 3(2)(V) of the Act of 1989 and reduction in sentence, qua offence under Section 326 I.P.C. the present appeal stands disposed of.

We further order that victim Badrilal [P.W. 3] shall be entitled to compensation under Section 357-A Cr.P.C. in pursuance of victim compensation scheme formulated by the State for permanent disability suffered due to 1/3rd amputation of left forearm, over and above compensation payable to him by any Court of law. The quantum of compensation, as per Section 357-A (2) Cr.P.C. shall be decided by Secretary, Rajasthan State Legal Service Authority and disbursed as per Section 357-A (5) Cr.P.C.

In view of above, no orders are called for in the application filed for suspension of sentence and the same stands disposed of.