KHUMAN SINGH versus STATE OF MADHYA PRADESH on 27 August 2019

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SUPREME COURT REPORTS

[2019] 11 S.C.R.

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KHUMAN SINGH

v.

STATE OF MADHYA PRADESH

(Criminal Appeal No. 1283 of 2019)

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AUGUST 27, 2019

[R. BANUMATHI AND A. S. BOPANNA, JJ.]

Penal Code, 1860 – s.302 – Scheduled Castes and ScheduledTribes (Prevention of Atrocities) Act, 1989 – s.3(2)(v) – Murder –CProsecution case that when victim was cultivating the field andgrazing his cattle, appellant-accused came to the field of the victimand left his buffaloes for grazing – In a wordy altercation, theappellant hit the victim on his head with an axe due to which victimfell down and later succumbed to injuries – FIR was registeredagainst the appellant u/s. 302 IPC and u/s. 3(2)(v) of the SC/DST(Prevention of Atrocities) Act – Trial Court convicted appellantunder the said sections of the Act and sentenced him lifeimprisonment – High Court affirmed the conviction – On appeal,held: In the instant case, the appellant and deceased exchangedwordy abuses on which, appellant gave deceased blows on his headEcausing six head injuries – Where the occurrence took placesuddenly and there was no premeditation on the part of the accused,it falls under Exception 4 to s. 300 IPC – Therefore, conviction ofappellant u/s.302 IPC is modified as conviction u/s. 304 Part-IIIPC – Insofar as conviction under SC/ST (Prevention of Atrocities)Act is concerned, from the evidence and other materials on record,Fthere is nothing to suggest that the offence was committed by theappellant only because the deceased belonged to a Scheduled Caste– Thus, conviction u/s. 3(2)(v) of the SC/ST (Prevention of Atrocities)Act is not sustainable.

Partly allowing the appeal, the CourtG

HELD: 1. The entire incident was in a sudden fight in whichthe appellant-accused caused head injuries on the deceased withan axe. There was no prior deliberation or determination to fight.The sudden quarrel arose between the parties due to trivial issueof grazing the buffaloes of the appellant for which, the deceasedH

raised objection. In a sudden fight, the appellant had inflictedblows on the head of the deceased with an axe which caused sixhead injuries. Though the weapon used by the appellant was axeand the injuries were inflicted on the vital part of the body viz.head, knowledge is attributable to the appellant-accused that theinjuries are likely to cause death. Considering the fact that theoccurrence was in a sudden fight, in our view, the occurrencewould fall under Exception 4 to Section 300 IPC. The convictionof the appellant-accused under Section 302 IPC is therefore tobe modified as conviction under Section 304 Part II IPC. [Para10] [275-D-F]

2. The next question falling for consideration is whetherthe conviction under Section 3(2)(v) of the Scheduled Castes andScheduled Tribes (Prevention of Atrocities) Act can be sustained?Deceased belongs to “Khangar” Caste and in a wordy altercation,appellant-accused is said to have called the deceased by his castename “Khangar” and attacked him with an axe. Calling of thedeceased by his Caste name is admittedly in the field when therewas a sudden quarrel regarding grazing of the buffaloes.[Para 11] [275-G-H]

3. The object of Section 3(2)(v) of the Act is to provide forenhanced punishment with regard to the offences under the IndianPenal Code punishable with imprisonment for a term of ten yearsor more against a person or property knowing that the victim is amember of a Scheduled Caste or a Scheduled Tribe. In thepresent case, the fact that the deceased was belonging to“Khangar”-Scheduled Caste is not disputed. There is no evidenceto show that the offence was committed only on the ground thatthe victim was a member of the Scheduled Caste and therefore,the conviction of the appellant-accused under Section 3(2)(v) ofthe Scheduled Castes and Scheduled Tribes (Prevention ofAtrocities) Act is not sustainable. [Paras 12, 13] [276-F; 277-B-C]

Dinesh alias Buddha v. State of Rajasthan (2006) 3 SCC771 : [2006] 2 SCR 793 – relied on.

Case Law Referencerelied onPara 13

[2006] 2 SCR 793

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ACRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 1283 of 2019.

From the Judgment and Order dated 02.02.2018 of the High CourtM.P. bench at Gwalior in CRA No. 799 of 2006

Dr. J. P. Dhanda, Mrs.Raj Rani Dhanda, Vineet Dhanda, N.A.BUsmani, Advs. for the Appellant.

Ms. Pragati Neekhra, AAG, Ms. Kaveri Vats, Rahul Kaushik,Advs. for the Respondent.

The Judgment of the Court was delivered byC

R. BANUMATHI, J.

Leave granted.

2. This appeal arises out of the judgment dated 02.02.2018 inCriminal Appeal No.799 of 2006 passed by the High Court of MadhyaDPradesh at Gwalior Bench in and by which the High Court affirmed theconviction of the appellant-accused under Section 302 IPC and underSection 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Preventionof Atrocities) Act, 1989 and the sentence of life imprisonment imposedupon him.

E3. Brief facts which led to filing of this appeal are as under:- On 14.08.2005 at about 11:00 AM, complainant-Rajaram (PW-1)along with his brother Raghuveer (PW-2), deceased Veer Singh andrelative Badam Singh (PW-7) had gone to cultivate the fields and forgrazing their cattle. When deceased Veer Singh was cultivating theFfield and others were grazing the cattle, appellant-accused Khuman Singhcame to the field of deceased Veer Singh and left his buffaloes for grazing.Deceased Veer Singh objected to it and drove the buffaloes of theappellant-accused out of his field on which, appellant became furiousand started abusing and scolding the deceased that how the deceasedGwho belongs to Khangar Caste could drive away the buffaloes ofThakurs out of his field. When deceased objected to it, it is alleged thatthe appellant with an intention to kill the deceased, attacked him with anaxe due to which, deceased Veer Singh fell down. Thereafter, appellant-accused allegedly gave two-three blows on the head of the deceasedwith axe. On seeing the complainant (PW-1), his brother (PW-2) andHBadam Singh (PW-7) coming, appellant-accused ran away from the spot. Deceased died on the spot itself. Rajaram (PW-1) lodged theDehati Nalishi/complaint (Ex.-P1) based on which, FIR in Crime CaseNo.306/2005 was registered against the appellant-accused under Section302 IPC and under Section 3(2)(v) of the Scheduled Castes andScheduled Tribes (Prevention of Atrocities) Act. Dr. Pradeep Sharma(PW-5) had conducted the post-mortem on the dead body of deceasedVeer Singh and found six injuries on his head. PW-5 issued post-mortemcertificate (Ex.P10) opining that the cause of death was shock due toexcessive external and internal bleeding. Upon completion of investigation,charge sheet was filed against the appellant-accused under Section 302IPC and under Section 3(2)(v) of the Scheduled Castes and ScheduledTribes (Prevention of Atrocities) Act.

4. To prove the guilt of the accused, the prosecution examinedthree eye witnesses viz. Rajaram (PW-1), Raghuveer (PW-2) and BadamSingh (PW-7) who have spoken about the occurrence and R.C. Bhoj,Police Incharge (PW-4), who has recorded Dehati Nalishi (Ex.-P1),Dr. Pradeep Sharma (PW-5) who has conducted post-mortem on thedead body of deceased and other witnesses. Upon consideration ofevidence, the trial court held that the prosecution has proved the guilt ofthe accused beyond reasonable doubt and vide judgment dated 11.09.2006convicted the appellant-accused under Section 302 IPC and sentencedhim to undergo life imprisonment. Since the deceased was a ScheduledCaste, the appellant-accused was also convicted under Section 3(2)(v)of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)Act and sentenced to undergo life imprisonment along with a fine ofRs.1,000/-. Being aggrieved, the appellant has preferred appeal beforethe High Court.

5. The High Court affirmed the conviction of the appellant-accusedby holding that mere delay in recording the statement of the witnessesunder Section 161 Cr.P.C. is not fatal to the case of prosecution. Afterreferring to the evidence of Mohinder Kanwar (PW-9)-InvestigatingOfficer, the High Court held that there was a communal tension in thelocality and therefore, PW-9 could not immediately record the statementof the witnesses and therefore, delay in recording the statement ofwitnesses would not affect the case of prosecution. The High Courtalso held that the delay in sending the FIR (Ex.-P9) to the Magistratecannot be said to be fatal to the case of prosecution. Insofar as theconviction under Section 3(2)(v) of the Scheduled Castes and Scheduled AB

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ATribes (Prevention of Atrocities) Act, the High Court held that thedeceased Veer Singh belonged to Khangar Caste which is a ScheduledCaste and when deceased objected to the act of the appellant-accusedof leaving his cattle in the field of deceased, appellant got furious andscolded that as the deceased belongs to Khangar Caste, how he coulddare to drive the cattle of a person belonging to Thakur Caste and hence,Bthe prosecution has proved the commission of the offence under Section3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention ofAtrocities) Act and the sentence of imprisonment imposed upon theappellant does not call for any interference.

6. We have heard Dr. J.P. Dhanda, learned counsel appearing onCbehalf of the appellant and Ms. Pragati Neekhra, learned counselappearing for the State of Madhya Pradesh and perused the impugnedjudgment, evidence and other materials on record. The point falling forconsideration is whether the conviction of the appellant-accused underSection 302 IPC and under Section 3(2)(v) of the Scheduled Castes andDScheduled Tribes (Prevention of Atrocities) Act is sustainable?

7. Rajaram (PW-1) and Raghuveer Singh (PW-2) are the realbrothers of deceased Veer Singh. Badam Singh (PW-7) is the real brotherof the wife of deceased and is not resident of the village where occurrencetook place. PWs 1, 2 and 7 who are eye-witnesses have consistentlyEstated that on the date of occurrence-14.08.2005, when deceased VeerSingh was cultivating the field and they were grazing their buffaloes atnearby place, at that time, appellant-accused Khuman Singh came therealong with his buffaloes and started grazing his buffaloes at the farmyardof the field of deceased Veer Singh. When deceased drove the buffaloesout of his field, the appellant is alleged to have abused the deceasedFcalling him by his caste “Khangar” as to how he can force away thebuffaloes of “Thakurs”. In a wordy altercation, the appellant-KhumanSingh hit the deceased on his head with an axe due to which, deceasedfell down and later succumbed to injuries. On considering the evidenceof PWs 1, 2 and 7 who have consistently spoken about the occurrence,Gthe prosecution has proved that the appellant caused the injuries on thehead of the deceased with an axe.

8. The question falling for consideration is whether the appellant-accused intentionally caused the death of deceased Veer Singh? Theentire incident occurred when the appellant had taken his buffaloes forHgrazing in the field of deceased for which the deceased objected and drove all the buffaloes out of his field. It is in these circumstances, theappellant became furious and abused the deceased and caused injurieson his head in a sudden fight with axe. There was no premeditation forthe occurrence and because of the grazing of the cattle, in a suddenfight, the occurrence had taken place.

9. The question to be considered is whether the act of the appellant-accused would fall under Exception 4 to Section 300 IPC? Exception 4to Section 300 IPC can be invoked if death is caused:- (a) withoutpremeditation; (b) in a sudden fight; (c) without the offender havingtaken undue advantage or acted in a cruel or unusual manner; and (d)the fight must have been with the person killed. In the present case, theappellant-accused and the deceased exchanged wordy abuses on which,appellant gave the deceased blows on his head causing six head injuries.Where the occurrence took place suddenly and there was nopremeditation on the part of the accused, it falls under Exception 4 toSection 300 IPC.

10. As discussed earlier, the entire incident was in a sudden fightin which the appellant-accused caused head injuries on the deceasedwith an axe. There was no prior deliberation or determination to fight.The sudden quarrel arose between the parties due to trivial issue ofgrazing the buffaloes of the appellant for which, the deceased raisedobjection. In a sudden fight, the appellant had inflicted blows on the headof the deceased with an axe which caused six head injuries. Though theweapon used by the appellant was axe and the injuries were inflicted onthe vital part of the body viz. head, knowledge is attributable to theappellant-accused that the injuries are likely to cause death. Consideringthe fact that the occurrence was in a sudden fight, in our view, theoccurrence would fall under Exception 4 to Section 300 IPC. Theconviction of the appellant-accused under Section 302 IPC is thereforeto be modified as conviction under Section 304 Part II IPC.

11. The next question falling for consideration is whether theconviction under Section 3(2)(v) of the Scheduled Castes and ScheduledTribes (Prevention of Atrocities) Act can be sustained? Deceased belongsto “Khangar” Caste and in a wordy altercation, appellant-accused issaid to have called the deceased by his caste name “Khangar” andattacked him with an axe. Calling of the deceased by his Caste name isadmittedly in the field when there was a sudden quarrel regarding grazingof the buffaloes.

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A12. From the evidence and other materials on record, there isnothing to suggest that the offence was committed by the appellant onlybecause the deceased belonged to a Scheduled Caste. Both the trialcourt and the High Court recorded the finding that the appellant-accusedscolded the deceased Veer Singh that he belongs to “Khangar” Casteand how he could drive away the cattle of the person belonging toB“Thakur” Caste and therefore, the appellant-accused has committedthe offence under Section 3(2)(v) of the Scheduled Castes and ScheduledTribes (Prevention of Atrocities) Act. Section 3 of the said Act dealswith the punishments for offences of atrocities committed under theScheduled Castes and the Scheduled Tribes (Prevention of Atrocities)CAct, 1989. Section 3(2)(v) of the Act reads as under:- “Section 3 – Punishments for offences of atrocities –

(1) ………

(2) Whoever, not being a member of a Scheduled Caste or aDSchedule Tribe, -

…….

(v) commits any offence under the Indian Penal Code punishablewith imprisonment for a term of ten years or more against a personor property knowing that such person is a member of a ScheduledECaste or a Scheduled Tribe or such property belongs to suchmember, shall be punishable with imprisonment for life and withfine”.

The object of Section 3(2)(v) of the Act is to provide for enhancedpunishment with regard to the offences under the Indian Penal CodeFpunishable with imprisonment for a term of ten years or more against aperson or property knowing that the victim is a member of a ScheduledCaste or a Scheduled Tribe.

13. In Dinesh alias Buddha v. State of Rajasthan (2006) 3SCC 771, the Supreme Court held as under:-G

“15. Sine qua non for application of Section 3(2)(v) is that anoffence must have been committed against a person on the groundthat such person is a member of Scheduled Castes and ScheduledTribes. In the instant case no evidence has been led to establishthis requirement. It is not case of the prosecution that the rapeHwas committed on the victim since she was a member of Scheduled Caste. In the absence of evidence to that effect, Section 3(2)(v)of the Atrocities Act been applicable then by operation of law, thesentence would have been imprisonment for life and fine.

As held by the Supreme Court, the offence must be such so as toattract the offence under Section 3(2)(v) of the Act. The offence musthave been committed against the person on the ground that such personis a member of Scheduled Caste and Scheduled Tribe. In the presentcase, the fact that the deceased was belonging to “Khangar”-ScheduledCaste is not disputed. There is no evidence to show that the offencewas committed only on the ground that the victim was a member of theScheduled Caste and therefore, the conviction of the appellant-accusedunder Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes(Prevention of Atrocities) Act is not sustainable.

14. Insofar as the conviction under Section 302 IPC is concerned,as discussed earlier, the conviction of the appellant under Section 302IPC is modified as conviction under Section 304 Part II IPC. Theappellant-accused has been serving the sentence in jail for more thantwelve years. As per the jail certificate issued by the Superintendent,Central Jail, Gwalior, the appellant has served the actual sentence in jailfor more than twelve years (as on 04.07.2018) and as on date, he hasserved the sentence of more than thirteen years. Considering the factsand circumstances of the case, for the conviction under Section 304Part II IPC, the appellant is sentenced to undergo imprisonment to theperiod already undergone.

15. In the result, the conviction of the appellant under Section3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention ofAtrocities) Act is set aside and he is acquitted of the said charge. Theconviction of the appellant under Section 302 IPC is modified as convictionunder Section 304 Part II IPC and is sentenced to undergo imprisonmentto the period already undergone. Accordingly, the appeal is partly allowedand the appellant is ordered to be released forthwith, if his presence isnot required in any other case.

Ankit Gyan

Appeal partly allowed.

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