Manohar Singh and Others vs State of Rajasthan

Kanwaljit Singh Ahluwalia, J—On 15.8.2008 infront of temple of Ramdevji in Village Manda in presence of Prahlad (P.W. 17), Gulab Ji (P.W. 15) and Bhairu Lal (P.W. 16), Nand Singh appellant to D.B. Criminal Appeal No. 447/2010 and Manohar Singh appellant to D.B. Criminal Appeal No. 814/2010 had abused Badrilal and have made derogatory comments regarding his caste. It was further case of the prosecution that on 17.8.2008 appellant Manohar Singh alone gave beating to Badrilal with a lathi. The incident was witnessed by Dinesh (P.W. 3), Chetan Kumar (P.W. 8), Jeetmal (P.W. 11) and Dhanna Lal (P.W. 13). The Court of Special Judge, SC/ST (Prevention of Atrocities) Cases, Kota vide impugned judgment dated 26.6.2010 convicted Manohar Singh appellant for offences under Sections 302, 447, 504 IPC and Sections 3(1)(10) and 3(2)(5) of SC/ST (Prevention of Atrocities) Act (for brevity, the Act), whereas convicted Nand Singh appellant for offence under Section 504 IPC and Section 3(1)(10) of the Act. Having convicted the appellants for the above said offences, the trial Judge vide a separate order of even date sentenced both the appellants as under:-

Appellant, Manohar Singh:

"U/s. 302: Life imprisonment, to pay a fine of Rs. 1000/- and in default thereof to undergo one month simple imprisonment.

U/s. 447 IPC: Three months simple imprisonment.

U/s. 504 IPC: One year simple imprisonment.

U/s. 3(1)(10), SC/ST Act: One year simple imprisonment, to pay a fine of Rs. 1000/- and in default thereof to undergo one month simple imprisonment.

U/s. 3(2)(5), SC/ST Act: Life imprisonment, to pay a fine of Rs. 1000/- and in default thereof to undergo one month simple imprisonment."

Appellant, Nand Singh:

"U/s. 504 IPC: One year simple imprisonment.

U/s. 3(1)(10), SC/ST Act: One year simple imprisonment, to pay a fine of Rs. 1000/- and in default thereof to undergo one month simple imprisonment."

Aggrieved against his conviction and sentence, Manohar Singh preferred D.B. Criminal Appeal No. 814/2010, whereas Nand Singh instituted S.B. Criminal Appeal No. 447/2010 and due to filing of appeal by co-accused, same has been treated by the office as a DB Appeal. We shall decide both the appeals together.

Ramdayal (P.W. 2) son of the deceased submitted a written report (Ex. P. 1) before the SHO, P.S. Ramganj Mandi, District Kota. On the basis of written report (Ex. P. 1), formal FIR (Ex. P. 2) bearing FIR No. 194/08 was registered at P.S. Ramganj Mandi, Kota.

In his written report (Ex. P. 1), Ramdayal (P.W. 2) stated that on 17.8.2008 at about 6.00 PM he was informed by Kamad (P.W. 5) about the death of his father. He further told that Dinesh and Chetan had informed him (Kamad, P.W. 5) that Manohar Singh Rajpoot by causing injuries with sticks had committed murder of Badrilal, father of the complainant. In the written report (Ex. P. 1), it was stated that two or four days earlier to the occurrence opposite the temple of Ramdev Ji, Manohar Singh had abused his father and on account of this incident, they had grudge and had caused injuries.

Gulab Ji (P.W. 15) stated that about 1 1/4 year ago he was sitting outside the temple alongwith Bhairu Lal and Badrilal. In the night about 11.00-12.00 Manohar Singh and Nand Singh both came and they gave abuses. They had taken the name of caste and had asked the witness and Badrilal to go away. In cross-examination the witness stated that no abuses were given to Badrilal because at that time he was sleeping and they had not given abuses by taking any particular name.

Bhairu Lal (P.W. 16) stated that Nand Singh dragged Gulab Ji and had given abuses on the name of caste. Badrilal made Nand Singh and Manohar Singh see reason.

Prahlad (P.W. 17) stated that year ago at about 11.00-12.00 he was sleeping in his house when he heard noise from the temple. He went there and saw that Manohar Singh and Nand Singh both were under the influence of liquor. They had torn his vest and they gave abuses on the name of caste.

Before we take note of the eye-witnesses account, it will be apposite to describe medical evidence.

Badrilal on 17.8.2008 had died at the spot. He was transported to the hospital where his postmortem was conducted by Dr. Babulal (P.W. 22). Dr. Babulal (P.W. 22) has proved on record the postmortem report (Ex. P. 17). As per the said post-mortem report (Ex. P. 17), Badrilal had suffered following four injuries:-

"1. Bruise red 5" x 1" lower ribs left transversely.

Bruise red 6" x 1" left thigh.

Bruise red 3" x 1" left calf post.

Bruise red 2" x 3/4 waist right ant."

The doctor further noticed that on palpitation, left lower two ribs were fractured. Doctor further opined that spleen was also ruptured and the cavity due to bleeding, was filled up with blood. In the opinion of Doctor, Badrilal had died due to shock because of excessive hemorrhage from spleen.

In the present case, prosecution had examined in all 23 witnesses. Since the case rests upon eyewitness account, we shall give brief gist of the evidence of eye-witnesses as there is not need to refer to the evidence of other remaining witnesses in the judgment as the said witnesses are not material.

Dinesh (P.W. 3) in court stated that he was grazing the goats where he met Chetan Kumar (P.W. 8) and Jeetmal (P.W. 11). Manohar Singh was giving beating to Badrilal. He was armed with stick. Manohar Singh gave lathi blows on the both armpits and leg.

Chetan Kumar (P.W. 8) in court deposed that Manohar snatched stick from him, went towards Badrilal and started giving him beating. Badrilal fell down on the ground and thereafter Manohar caused him injuries.

Jeetmal (P.W. 11) stated that Manohar had snatched lathi from him and had given beating to Badri.

Dhanna Lal (P.W. 13) stated that Badrilal was sleeping when accused came, caused him injuries with stick. After causing injuries, Manohar Singh went away from the spot. He went near Badrilal. Badrilal informed that he was beaten by Manohar. He offered water to Badrilal, who took water from him. Thereafter, he left for the village and on the way met Kamad (P.W. 5) nephew of the deceased.

Ms. Gayatri Rathore appearing for appellant Manohar Singh has submitted that even if eye-witness account is accepted, the appellant had caused only four injuries on the person of deceased and they all are bruises. It is contended that neither any solitary injury, nor all injuries collectively were sufficient to cause death in ordinary course of nature. It is stated that death of the deceased had occurred due to rupture of spleen. Learned counsel submitted that even if two ribs of left lower side of chest were fractured, they were not sufficient to cause death. To fortify her submission, learned counsel has referred to the testimony of Dr. Babulal (P.W. 22) who in his cross-examination stated as under:-

Dr. Babulal (P.W. 22) has specifically stated neither injury No. 1, 2, 3 or injury No. 4 individually nor collectively were sufficient to cause death.

Ms. Gayatri Rathore has referred to a judgment rendered by the Division Bench of this court to which one of us (Kanwaljit Singh Ahluwalia) was member. In Bheru Lal v. State of Rajasthan [2014 (4) Cr.L.R. (Raj.) 2138] various judgments regarding injury to spleen were noticed as under:-

"40. Counsel for the appellant has placed reliance upon a judgment rendered by a Division Bench of Gujarat High Court in the case of State of Gujarat Vs. Babu Kava, (2003) 23 GLH 604 : (2003) 4 GLR 892 wherein regarding injury to spleen, their Lordships, after examining the medical evidence, had observed as under:-

"15. As per Modi''s Medical Jurisprudence and Toxicology, the normal spleen in an adult measures 12 x 8 x 4 cms. In some cases, the spleen decomposes earlier than the stomach and the intestines, especially if it is swollen and hypepraemic from an acute infectious disease or enlarged from chronic malaria. However, it may resist putrefaction longer, if it happens to be firm and comparatively bloodless. Owing to putrefaction, the spleen becomes soft, pulpy, greenish-steel in colour, and it may be reduced to a diffluent mass within two to three days in summer. On account of its situation, rupture of a normal spleen is very rare unless caused by considerable crushing and grinding force, such as the passing of a carriage or motor car over the body, or by a crush in a railway accident, or by a fall from a very great height; in such cases it is usually associated with injuries to other solid organs and to the ribs overlying the spleen. A normal spleen may sometimes be ruptured by the broken ends of a rib, which may be fractured by a severe kick or by a blow from a blunt weapon. A spleen subjected to traction forces may be torn from its pedicle. An enlarged spleen becomes softened and brittle. Hence it is liable to rupture from a fall or from violence of a very slight degree. In such cases, the abdominal wall may not show any external mark of injury.

(emphasis supplied)

As per Dr. Jhala & Raju''s Medical Jurisprudence, norma ly the spleen is very high up in the abdomen and well protected by the ribs. Thus, unless enlarged to double its size, it is not directly exposed to external injury. Penetrating injuries can certainly involve the organ. When enlarged, it is clearly vulnerable even to direct blows like kicks. Furthermore, such an enlarged organ is friable in structure and hence likely to bleed profusely. Such profuse bleeding may prove fatal and that too rapidly so. On the other hand when the spleen is of normal size and texture and found to be lacerated, the overlying side and abdominal wall must show signs of blunt injury viz., contusion. A kick on an enlarged spleen resulting in fatal haemorrhage amounts to a milder offence even of simple hurt depending on circumstantial evidence.

In view of the above referred to authoritative passages on Science of Medical jurisprudence it cannot be gainsaid that enlarged and diseased spleen itself is sensitive and it is vulnerable and susceptible to rupture by a slightest force. Now, therefore, the question which requires to be considered is as to whether the accused have committed the offence of culpable homicide not amounting to murder punishable under Section 304 Part II of IPC or grievous hurt punishable under Section 325 of the IPC or hurt punishable under Section 323 of the IPC.

A similar question arose before the Calcutta High Court way back in 1920 in the case of Emperor Vs. Saberali Sarkar, 57 Ind. Cas. 826 . In that case, the accused, having found that a young man had approached his kept mistress for the purpose of having sexual intercourse with her, thought that he would be justified in teaching him a lesson by giving him a good thrashing. He accordingly sent for the brother of the young man, and in the presence of the villagers gave him a good beating by kicks and blows, which resulted in his death. The deceased was of a weak constitution and had an enlarged spleen, and it appeared that when the villagers told the accused that he was about to kill the young man by his kicks and blows, he observed that the deceased was merely pretending and gave him some more strokes with a cane. The accused was thereupon charged with an offence under S. 304. The jury found him guilty under S. 323. The Sessions Judge disagreed with the jury and being of opinion that the accused was guilty under S. 325, referred the matter to the High Court under Section 307 of the Old Code. In the aforesaid fact situation, the High Court held that in the circumstances of the case it was doubtful whether the accused had either intended or knew it to be likely that he would cause grievous hurt and as the case seemed to be on the border line between Ss. 323 and 325 the accused might be given the benefit of the doubt and should be convicted of an offence under S. 323.

In the case of Ramakrishna Panicker Vs. State of Kerala, AIR 1959 Ker 372 : (1959) CriLJ 1331 , before Kerala High Court the victim was having a spleen of diseased condition which got ruptured. In the said fact situation, Kerala High Court held that when the injury is not serious and there was no intention to cause death or grievous hurt, nor did the accused have knowledge that it was likely to cause grievous hurt or death, he is guilty of causing hurt and not death even though death is caused. It was further held that therefore where from the circumstances of the case it is impossible to draw an inference that the accused would have intended to give the deceased anything more than a beating or thrashing to teach him a lesson for using foul language to him, a police officer, it would not be possible to attribute to him the requisite intention or knowledge merely because of the diseased condition of the spleen of the deceased which got ruptured. In such circumstances his conviction under S. 304 cannot stand.

A similar question arose before a Division Bench of Allahabad High Court in the case of Sri Prakash Vs. The State, (1990) CriLJ 486 . In that case, the beating given by the accused to a child has resulted into the death of the child. However, there was no visible injuries found on the dead-body. Beating given to the child, therefore, could not be severe. On medical evidence, spleen of the child was found to be ruptured and, therefore, enlarged spleen could only be the reason of death. The accused was not knowing of the enlarged spleen of the deceased. On the fact situation, the Division Bench held that the accused could not be held guilty under Section 304 of IPC and further held that conviction will be proper under Section 323 and not under Section 325 of IPC.

Applying the principles laid down by three High Courts in the above referred to judgments and the passages quoted by us from the Medical jurisprudence of Dr. Modi and Dr. Jhala and Raju to the facts of the present case, it cannot escape from the conclusion that the deceased Gordhanbhai died in an ordinary incident which has resulted into quarrel between the complainant and the accused, the accused got excited and gave fist blows to the deceased whose spleen as per the medical evidence was ruptured as it was enlarged and diseased. Therefore neither intention nor knowledge can be attributed to the accused for causing murder or culpable homicide not amounting to murder of deceased Gordhanbhai. At the most the offence under section 323 of IPC is proved as all of them gave fist blows to deceased as well as A-2 has given fist blows to complainant Vimlaben."

We find in the present case there is no evidence that the spleen was enlarged. At the same time, there is also no evidence that any injury was directly caused to the spleen. The four injuries on the person of deceased are bruises whereas only one injury, i.e. injury No. 1 was on the vital portion of the body, i.e. chest, whereas injury No. 2 is on the left thigh, injury No. 3 is another bruise on left calf and injury No. 4 is on the waist. Thus, we can safely assume that due to the incident dated 15.8.2008, which is relied to prove motive, appellant only intended to give beating to the deceased Badrilal. He never intended to cause his murder. It has come in evidence that the appellant has gone to the place of occurrence empty handed. He was not armed with any weapon.

Jeetmal (P.W. 11) in court has stated that he was grazing cattle when the appellant Manohar snatched a lathi from him and gave injuries to Badri. Chetan Kumar (P.W. 8) in court has also stated that accused had snatched a lathi from him and went towards Badrilal. Even though the witnesses are discrepant from whom lathi was snatched, but both are emphatic to say that the accused came unarmed and had snatched lathi. Therefore, it can be safely assumed that the accused had no intention to cause murder, but only to give beating to the deceased.

Taking into account that injury to spleen was a cause of death and no direct injury was caused to spleen, each injury itself, as per opinion of the doctor, was not sufficient to cause death and furthermore injuries cumulatively have also not contributed to death, we find that no offence under Section 302 IPC is made out. At the most offence under Section 304 Part-II IPC is made out.

Consequently, while setting aside the conviction of appellant Manohar Singh for offence under Section 302 IPC, we convert his conviction to offence under Section 304 Part-II IPC and sentence him to seven years rigorous imprisonment under Section 304 Part-II IPC.

Now, we are concerned whether offence under Section 3(2)(5) and Section 3(1)(10) of the Act are made out or not?

Gulab Ji (P.W. 15) in cross-examination has stated that on 15.8.2008 no abuses were given to Badrilal and he was sleeping. It will be necessary to reproduce the exact words from cross-examination of Gulab Ji (P.W. 15) as under:-

However, the witness stated that the accused appellants Manohar Singh and Nand Singh had abused Gulab Ji (P.W. 15), Bhairu Lal (P.W. 16) and Prahlad (P.W. 17) on the name of caste. Thus, from the narration of facts it is evident, that incident dated 15.8.2008 constitute a separate incident and qua that incident, both Nand Singh and Manohar Singh have committed offence under Section 3(1)(10) of the Act.

However, there is no evidence that on 17.8.2008 appellant Manohar Singh had gone to the field to assert supremacy of his caste or to humiliate members of the scheduled caste community. As per cross-examination of Gulab Ji (P.W. 15), appellant Manohar Singh had not abused Badrilal. It has come in evidence that when Manohar Singh and Nand Singh were abusing, Badrilal had intervened. Thus, there is no evidence that on 17.8.2008 appellant Manohar Singh had caused injuries to Badrilal only because of his caste.

A Division Bench of this court in Ramkaran v. State of Rajathan [D.B. Criminal Appeal No. 945/2004, decided on 25th November, 2014] noticing the contention of the counsel in that case has observed as under:-

"14. 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, AIR 2000 SC 1876 : (2000) 2 JT 367 : (2000) 2 SCALE 70 : (2000) 3 SCC 557 : (2000) 1 SCR 1155 : (2000) 1 UJ 554 : (2000) AIRSCW 719 : (2000) 1 Supreme 584 . 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 reported in 2000 SCC (Cri.) 722, which was a case relating to murder, wherein the accused was convicted for the offence u/s. 304-II 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-II 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, (2014) 1 WLN 454 , 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."

Thus, we set aside the conviction of the appellant Manohar Singh for offence under Section 3 (2)(5) of the Act. So far as appellant Nand Singh is concerned, for the incident dated 15.8.2008 in view of un-assailed evidence of Gulab Ji (P.W. 15), of Bhairu Lal (P.W. 16) and of Prahlad (P.W. 17), we hold him guilty of offences under Section 3(1)(10) of the Act and Section 504 IPC. Nand Singh has been awarded sentence of one year for offence under Section 3(1)(10) of the Act and for offence under Section 504 IPC he has also been awarded one year''s sentence. The Schedule Caste & Schedule Tribes (Prevention of Atrocities) Act, 1989 provides minimum sentence of six months for offence under Section 3(1)(10) of the Act. Considering that the appellant is in the corridors of the court for last seven years, we reduce sentence of accused Nand Singh for offence under Section 3(1)(10) of the Act to six month simple imprisonment.

Consequently, as a result of above discussion, D.B. Criminal Appeal No. 447/2010 preferred by Nand Singh appellant is disposed of by reducing his sentence for offence under Section 3(1)(10) of the Act and for offence Section 504 IPC from one year simple imprisonment awarded on both counts to six months simple imprisonment on both the counts.

So far as appeal preferred by Manohar Singh appellant, bearing D.B. Criminal Appeal No. 814/2010 is concerned, we have already converted his conviction from Section 302 IPC to Section 304 Part-II IPC and awarded him sentence of seven years rigorous imprisonment by setting aside life imprisonment. We uphold the conviction and sentence awarded by the trial court to the appellant Manohar Singh for offences under Sections 447 and 504 IPC. We further reduce the sentence of appellant Manohar Singh for offence under Section 3(1)(10) of the Act from one year simple imprisonment to six months simple imprisonment. However, we maintain the sentence of fine and default clause. For the detailed reasons given, we also set aside the conviction and sentence of appellant Manohar Singh for offence under Section 3(2)(5) of the Act.

Due to conversion of offence, modified sentence awarded upon the appellant Manohar Singh under Section 304 Part-II IPC shall run concurrently with sentence awarded on other counts and both the appellants shall be entitled to the benefit of Section 428 Cr.P.C.

With the above modification in conviction and sentence, both the appeals stand disposed of.