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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.