Lal Singh and another vs State of Madhya Pradesh

G.D. Saxena, J.—Being aggrieved by an order dated 23rd August 2011 in Special Case No. 46/2011 passed by the Special Judge (Atrocities), Bhind (M.P.), framing thereby charges against the petitioners/accused for commission of offence punishable Section 304/34 of I.P.C. read with Sections 3(1)(x) & 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989,this revision has been preferred.

The facts, in brief, just for the decision of this revision are that deceased Rakesh was engaged by the accused for casual labour work on daily wage of Rs. 300/-, as driver on their tractor for harvesting the mustered crops. It is alleged that on the fateful day on 21st March 2010 at about 10 a.m., in the village Kandora Ka Pura, near the house of one Lakhpat Singh, the accused-petitioners and the deceased were indulged in harvesting the crops of Mustered. It is stated that the deceased Rakesh was operating and watching the action of harvesting and cleaning the crop of Mustered and during the said process, he slipped and his body was crushed by the cutter of the thresher fitted with the tractor. He died on the spot. After incident, the accused drove the tractor away and after proceeding for ahead they left the tractor with dead body of Rakesh in the forest area and absconded from there without informing the incident of death of Rakesh to the police and the family members of the deceased. During search by Har Narayan Jatav, father of the deceased, he saw that the body of Rakesh was crushed and entangled with the cutter. Accordingly, the report was lodged by him at Police Station Baha district Agra (U.P). Thereafter, both the accused reached the house of deceased and on lodging the report hurled abuses to the complainant. On investigation, the charge-sheet was filed in the criminal court. During trial the Special Judge framed the charges for alleged offence, as mentioned above, hence this revision for quashing of the same.

The contention of the learned counsel for the etitioners/accused is that the impugned order passed by trial Judge is illegal and without jurisdiction, hence, same is liable to be set aside. It is contended that the learned trial Judge at the time of framing the charges against the petitioners/accused did not consider the ingredients of the offence for which the charge was framed. Therefore, it is requested that by allowing the revision, the petitioners be discharged of the alleged charges, mentioned above. In support of his submissions, reliance is placed by the learned counsel on the decisions in the cases of Masumsha Hasanasha Musalman Vs. State of Maharashtra (AIR 2000 SC 1876) : AIR 2000 SCW 719 and Ramdas and Others Vs. State of Maharashtra,

The learned Panel Lawyer for the respondent/State, on the other hand, supported the impugned order and prayed for dismissal of the revision.

Heard the learned counsel for the parties and also perused the impugned order and the documents filed on the record.

The question for consideration in this case is that whether the learned trial Judge was justified in framing the charges against the petitioners-accused in the light of the material available before him and the said material was enough to make out a prima facie case for proceeding against them ?

Before adverting to the rival submissions of the learned counsel for the parties, it would be useful to reproduced the relevant Sections of the Schedule Caste & Schedule Tribe (Prevention of Atrocities) Act 1989. Same run as are under:-

Section 3(1)(x) :-(1) Whoever, not being a member of a Schedule Caste or a Schedule Tribe :-intentionally insults or intimidates with intention to humiliate a member of a scheduled Caste or a Scheduled Tribe any place within public view; shall be punishable with imprisonment for a term which shall not be less than six month which may extent to five years and with fine.

Section 3(2)(v) :-Whoever, not being a member of a scheduled Caste or a scheduled Tribe :- commits any offence under the Indian Penal Code (45 of 1860) 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; shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to the punishment provided for that offence.

In the case of Ram Das (supra) it is observed:-

At the outset we may observe that there is no evidence whatsoever to prove the commission of offence u/s 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The mere fact that the victim happened to be a girl belonging to a scheduled caste does not attract the provisions of the Act. Apart from the fact that the prosecutrix belongs to the Pardhi community, there is no other evidence on record to prove any offence under the said enactment. The High Court has also not noticed any evidence to support the charge under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and was perhaps persuaded to affirm the conviction on the basis that the prosecutrix belongs to a scheduled caste community. The conviction of the appellants u/s 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 must, therefore, be set aside.

In the case of Masumsha Hasanasha Musalman (supra), it is held:-

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 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. 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.

Further, in the case of Swaran Singh Vs. State through Standing Counsel (AIR 2008 SCW 5758), the Hon. Apex court held :

In our opinion, calling a member of the Scheduled Caste ''Chamar'' with intent to insult or humiliate him in a place within public view is certainly an offence u/s 3(1)(x) of the Act. Whether there was intent to insult or humiliate by using the word ''Chamar'' will of course depend on the context in which it was used.

A perusal of the FIR clearly shows that, prima facie, an offence is made out against the appellants 2 and 3. As already stated above, at this stage we have not to see whether the allegations in the FIR are correct or not. We have only to see whether treating the FIR allegations as correct an offence is made out or not. In our opinion, treating the allegations in the FIR to be correct an offence u/s 3(1)(x) of the Act is prima facie made out against appellants 2 and 3 because it prima facie seems that the intent of the appellants was to insult or humiliate the first informant, and this was done within the public view.

It has been alleged in the FIR that Vinod Nagar, the first informant, was insulted by appellants 2 and 3 (by calling him a ''Chamar'') when he stood near the car which was parked at the gate of the premises. In our opinion, this was certainly a place within public view, since the gate of a house is certainly a place within public view. It could have been a different matter had the alleged offence been committed inside a building, and also was not in the public view. However, if the offence is committed outside the building e.g. in a lawn outside a house, and the lawn can be seen by someone from the road or lane outside the boundary wall, the lawn would certainly be a place within the public view. Also, even if the remark is made inside a building, but some members of the public are there (not merely relatives or friends) then also it would be an offence since it is in the public view. We must, therefore, not confuse the expression ''place within public view'' with the expression ''public place''. A place can be a private place but yet within the public view. On the other hand, a public place would ordinarily mean a place which is owned or leased by the Government or the municipality (or other local body) or gaon sabha or an instrumentality of the State, and not by private persons or private bodies.

Again, in the case of Asmathunnisa Vs. State of A.P. represented by the Public Prosecutor, High Court of A.P., Hyderabad and Another, , it has been held as under:-

The aforesaid paragraphs clearly mean that the words used are "in any place but within public view", which means that the public must view the person being insulted for which he must be present and no offence on the allegations under the said section gets attracted if the person is not present.

In the case of Gorige Pentaiah v. State of A. P. and Ors AIR 2008 SC (Supp) 634 the Apex court further held:

In the instant case, the allegation of respondent No.3 in the entire complaint is that on 27.5.2004, the appellant abused them with the name of their caste. According to the basic ingredients of Section 3(1)(x) of the Act, the complainant ought to have alleged that the accused-appellant was not a member of the Scheduled Caste or a Scheduled Tribe and he (respondent No. 3) was intentionally insulted or intimidated by the accused with intent to humiliate in a place within public view. In the entire complaint, nowhere it is mentioned that the accused-appellant was not a member of the Scheduled Caste or a Scheduled Tribe and he intentionally insulted or intimidated with intent to humiliate respondent No. 3 in a place within public view. When the basic ingredients of the offence are missing in the complaint, then permitting such a complaint to continue and to compel the appellant to face the rigmarole of the criminal trial would be totally unjustified leading to abuse of process of law.

In all those cases referred to above, it is held that merely because word "Chamar" has been used that would not mean that it was used in order to intentionally insult or humiliate the complainant, who is belonging to Scheduled Caste in a place within public view.

It is not disputed that the accused/petitioners are the members of upper caste and the complainant and his family members are belonging to "Jatav", which falls within the definition of Scheduled Caste, as declared in Schedule X under the Indian Constitution. On perusal of the statements of witnesses Har Narayan, father of deceased Rakesh and Smt. Ishwaridevi, wife of deceased Rakesh, it clearly appears that they have mentioned in their case-diary statements recorded by the I.O., to the effect that "Bad me Karua mujhe mila aur mujha se bola Chamarawale tune report kar dee hai ". Under the circumstances, statements of the witnesses do not disclose that the insulting words were spoken by the accused/ petitioners at place within public view. It can therefore be safely said that there is no iota of evidence on record of the trial Judge for framing charge for offence punishable u/s 3(1)(x) of the Act. 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. Because the petitioners/accused engaged the deceased from his residence and they were also knowing that the deceased belonged to the member of Scheduled Caste, therefore, it can not be said that there no valid ground appears from the evidence on record of the trial Judge for framing the charge of offence punishable u/s 3(2)(v) of the Act.

On the point of charge framed u/s 304/34 of I.P.C. it is useful to refer the case of Laxman Kalu Nikalje Vs. The State of Maharashtra, ) wherein it is held as under :

That section requires that the bodily injury must be intended and the bodily injury intended to be caused must be sufficient in the ordinary course of nature to cause death. This clause is in two parts; the first part is a subjective one which indicates that the injury must be an intentional one and not an accidental one, the second part is objective in that looking at the injury intended to be caused, the court must be satisfied that it was sufficient in the ordinary course of nature to cause death. We think that the first part is complied with, because the injury which we, intended to be caused was the one which was found on the person of Ramrao. But the second part in our opinion is not fulfilled, because but for the fact that the injury caused the severing of artery, death might not have ensued. In other words, looking at the matter objectively, the injury which Laxman intended to cause did not include specifically the cutting of the artery but to wound Ramrao in the neighbourhood of the clavicle. Therefore, we are of opinion that the thirdly of Section 300 does not cover the case. Inasmuch as death has been caused, the matter must still come within at least culpable homicide not amounting to murder. There again, Section 299 is in three parts. The first part takes in the doing of an act with the intention of causing death. As we have shown above Laxman did not intend causing death and the first part of Section 299 does not apply. The second part deals with the intention of causing such bodily injury as is likely to cause death. Here again, the intention must be to cause the precise injury likely to cause and that also, as we have shown above, was not the intention of Laxman. The matter therefore comes within the third part. The act which was done was done with the knowledge that Laxman was likely by such act to cause the death of Ramrao. The case falls within the third part of Section 299 and will be punishable under the second part of Section 304 of the Indian Penal Code as culpable homicide not amounting to murder.

Further, in the case of State of Gujarat Vs. Haidarali Kalubhai, it is held that if a person drives a motor car into the midst of a crowd and thereby causes death of some person, it will not be a case of rash or negligent driving, but the act will amount to culpable homicide.

Now, coming to the factual aspects of the case, it appears from the averments of the FIR and the case diary statements of witnesses Lakhpat Baghel, son of Hariram Beghel and Smt. Samati wife of Lakhapat Baghel, residents of Kadora Ki Bagia, Police Station Ater district Bhind, who are none else but the eye-witnesses to the incident that on 21st March 2010 at about 10 a.m., when the witness Lakhapat saw the tractor alongwith harvesting cutter passing through the road, he asked the accused Lal Singh Yadav, who was going on a tractor, driven by driver deceased Rakesh, son of Har Narayan Jatav, member of Scheduled Caste and resident of Dada Bateshwar of Police Station Baha district Agra U.P., to harvest and clean his crops of mustered standing on his agricultural fields on payment of rent, which was situated behind the house. During harvesting and cleaning the mustered crop, deceased Rakesh came into contact with the cutter operating with running tractor and the body of Rakesh was crushed by the cutter. Consequently, he died on the spot. It is alleged that accused demanded Rs. 500/-for cleaning the crops from Lakhapat Baghel and drove the tractor away from the spot. After going ahead, the accused left the tractor with harvester-cutter near Bankhandeshwar Tower alongwith other co-accused. They did not inform the police and the relatives of deceased. On going through the case diary statements of Har Narayan (father of the deceased), Smt. Ishwari Devi (wife of the deceased), it transpires that on 12th March 2010 both the accused Lal Singh Resident of Ater district Bhind and Kali Charan resident of Budera of Police Station Baha district Agra engaged the deceased Rakesh for casual labour work on daily wage of Rs. 300/-, as driver on their tractor for harvesting the mustered crops at Ater district Bhind. On 21st March 2010, Rakesh died while cleaning the mustered crops, which was not informed by the accused-petitioners Lal Singh and Kalicharan to the police nor to the relatives of the deceased. On search by his father Har Narayan, he found the tractor and the crushed dead body of his son entangled with its harvesting-cutter. The information was recorded at Police Station Baha district Agra and Marg was inquired into by the police, thereafter, the FIR was lodged and the investigation started. Because the place of incident was in Ater Police Station district Bhind M.P., consequently, the further investigation was transfered to Police Station Ater. From the evidence, it further seems that the accused engaged the deceased as driver on their tractor at Rs 300/-on daily wage during harvesting season in Ater area. It is not clear from the material available on record that the deceased was engaged for harvesting cutting and cleaning of crops. In such circumstances, the act of accused by permitting the deceased to interfere with running cutter machine fitted with tractor by which the death was caused was so imminently dangerous that the petitioners/accused must presume to have known that it would, in all probabilities, cause death or such bodily injury as is likely to cause death. Therefore, unless they can meet out this presumption, their act will be culpable homicide.

In the result, the revision petition stands allowed only to the extent of framing of charge u/s 3(1)(x) of the said Act. Accordingly, the petitioners/accused are discharged from the offence u/s 3(1)(x) of the Act. It is made clear that the trial against petitioners/accused shall continue for other charges except the charge u/s 3(1)(x) of the Act.