Shriram vs State of Rajasthan

Kanwaljit Singh Ahluwalia, J.—The appellant, Shriram @ Sariya S/o. Shri Banshidhar, along with Raghuveer S/o. Chunni Lal and Gulab Meena @ Gulla S/o. Prahlad Meena were named as accused in a case arising out of FIR No. 37/05 registered at Police Station Patan, District Sikar, for the offences under Section 302 IPC and Section 3(2)(5) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

Gulab Meena @ Gulla could not be arrested and was declared as proclaimed offender. We are informed that till date, Gulab Meena @ Gulla has not been arrested.

The trial court vide impugned judgment dated 17.10.2006, acquitted the co-accused Raghuveer by extending the benefit of doubt. However, the trial court held the present appellant, Shriram @ Sariya guilty of offences under Section 302 IPC and Section 3(2)(5) of SC/ST Act.

Having convicted the appellant for the aforesaid offences, vide a separate order of even date, the trial court sentenced the appellant as under:

"U/s. 302 IPC- to undergo life imprisonment and to pay a fine of Rs. 10,000/-, in default of payment of fine, to further undergo six month S.I.

U/s. 3(2)(5) SC/ST Act- to undergo life imprisonment and to pay a fine of Rs. 2,000/-, in default of payment of fine, to further undergo three month S.I."

Aggrieved against his conviction and sentence, the appellant has instituted the present appeal praying that the conviction and sentence awarded by the trial court be set aside.

The criminal proceedings, in the present case were initiated on the basis of written report (Exhibit-P/1) presented by Rohitash (P.W. 1) before Vikram Singh (P.W. 16), who was then posted as S.I. at Police Station Patan, Sikar. The written report (Exhibit-P/1) when translated into English, reads as under:

"To SHO Sahib, Police Station Patan. Subject: For registration of case.

Sir,

It is submitted that on 25.3.2005, at about 8:30 PM, in the night, I had gone to attend the Holika Dahan (a festival celebrated by burning Holika, the devil in order to save Prahlad). At that time, I heard noise of Ashok son of my elder brother Ram Kumar, who was raising noise of ''Bachao Bachao''. I went running there and saw that Shriram Swami and Gulab Meena, residents of Biharipur and Raghuveer Jat resident of Sirohi (Haryana) were causing injuries to my brother Ram Kumar with axe and lathis and were also abusing him. Shriram Swami and Gulab Meena were armed with axe and Raghuveer Jat was armed with lathi. Shriram Swami gave an injury with axe on the forehead of my brother, due to which my brother fell on the ground. Thereafter, Gulab Meena caused injury on the head of my brother. Raghuveer Jat was armed with lathi also caused an injury on the head. Due to injuries received, my brother Ram Kumar died at the spot. All the three persons had given beating to my brother. Shriram earlier also armed with lathi had caused injuries to my brother Ram Kumar. While going, all the three threatened us that in case we go to police station, we will also be killed. They had also caused injuries with lathi on my left hand. Due to fear I had not come to the police station in night. Now, I have come in the morning to report the matter. The report be registered and the accused be arrested and punished. We have brought the dead body of the deceased to the police station Patan.

Applicant Rohitash S/o. Prahlad Meena Aged 25 years, R/o Dhani Lakhodi Tehsil Biharipura, P.S. Patan."

On the basis of above written report (Exhibit-P/1), a formal FIR (Exhibit-P/3) was registered at the Police Station Patan, District Sikar.

As stated earlier, the co-accused Gulab Meena @ Gulla could not be arrested, hence, the charge-sheet was submitted against the appellant Shriram @ Sariya and Raghuveer Jat. The accused along with the report of investigation were committed to the court of Sessions and the trial was entrusted to the court of Special Judge, SC/ST (Prevention of Atrocities) Act Cases, Sikar. The appellant was charge-sheeted for the offences under Section 302 IPC and Section 3(2)(5) of SC/ST Act.

It is to be noted that Rohitash (P.W. 1), deceased Ram Kumar and Gulab Meena @ Gulla (accused not apprehended), all three are brothers.

Dr. R.C. Jain (P.W. 9) along with Dr. Anand Kumar (P.W. 10), being member of the Medical Board, had conducted the autopsy on the dead body of Ram Kumar S/o. Prahlad Meena, aged 40 years, as per Post Mortem Report (Exhibit-P/15) he had found the following injuries on the person of the deceased:--

"(i) Incised wound, 10 x 2 1/2 x 4 1/2 cm, on forehead midline, cutting frontal bones, brain material.

(ii) Incised wound, 10 x 2 1/2 x 2 cm, on Left cheek extending from below eye cutting underlying bones.

(iii) Incised wound, 7 x 1 x 1/2 cm, left scapular region.

(iv) Incised wound, 10 x 1 1/2 x 1 1/2 cm, on occipital region mid line (All wounds are transversely placed)."

It is to be noted that in the Post Mortem Report (Exhibit-P/15), doctor had found fracture of both frontal bones and fracture of both occipital bones and as per opinion of the Medical Board, the cause of death was Coma due to severe head injuries. Thus, it is to be noted that the deceased Ram Kumar had suffered injuries also on the frontal part of the head and back side of the head.

Rohitash (P.W. 1) while appearing in the court stated that Ram Kumar was his real brother. Five to six months before the occurrence, he had gone to participate in the function of Holika Dahan and he had not seen the occurrence. This witness was declared hostile.

Babu Lal (P.W. 2), who had attested the site plan was also declared hostile along with Durga Ram (P.W. 3), who had witnessed lifting of blood stained soil and controlled soil from the spot. Durga Ram also denied the fact that any recovery was made in his presence.

Boduram (P.W. 4) who had attested the inquest proceedings stated in the court that his signatures were obtained on the blank papers. This witness was also declared hostile by the prosecution.

Urmila (P.W. 5), wife of Rohitash (P.W. 1) had also turned hostile and has not supported the prosecution case.

Bheru Singh (P.W. 6) in the court denied that the accused got the weapon recovered.

Matadeen (P.W. 7) was also declared hostile and he has not supported the factum that in his presence accused got an iron rod recovered from his house. Om Prakash (P.W. 8) was also declared hostile by the prosecution.

The prosecution case rests on the testimony of Ashok aged 12 years and Laxmi aged 15 years both children of the deceased. It is to be noted that in the FIR (Exhibit-P/3) it is stated by Rohitash (P.W. 1) that when Ashok raised noise, he was attracted to the spot.

Ashok (P.W. 11) in the court deposed that in the night, Shriram @ Sariya, his uncle Gulab Meena and Raghuveer were taking liquor and they were giving filthy abuses in the name of mother and sister. This witness along with his father, sister Laxmi and another sister Nitesh were sitting in the home. His father asked the accused not to give abuses. His father had gone to the accused and the witness had followed him. When his father restrained the accused then Shriram @ Sariya gave an axe blow in his head and one blow on the waist. Then, this witness and his father raised noise ''Bachao Bachao''. His father fell on the ground. While his father was lying fallen, his uncle Gulab Meena gave an injury on his forehead. Raghuveer also caused an injury with lathi. His sister Laxmi, uncle Rohitash (P.W. 1), aunt Urmila and sister Nitesh were attracted to the spot. When this witness went to save his father, Shriram also gave an injury on his knee. His father died at the spot. In the morning, the complaint was made regarding murder of his father.

The child, Ashok (P.W. 11) was subjected to extensive cross-examination. This witness admitted that there was a dispute over the land with uncle. Then further stated in cross-examination that his uncle Rohitash and aunt Urmila arrived at the spot after the beating was given. This witness further stated that he also arrived at the spot when the injuries had already been given.

Mr. Biri Singh, the learned senior counsel for the appellant, picking up the stray line in the testimony of Ashok (P.W. 11), contended that Ashok (P.W. 11) had not witnessed the occurrence.

We have perused the statement of Ashok (P.W. 11) again and again. Ashok (P.W. 11) stated in the court that he followed his father when he had gone to restrain the accused not to give abuses. This witness has further stated that when his father had gone to restrain the accused, at that time, Holika Dahan was being celebrated.

Laxmi (P.W. 12) has also stated in the court that her father had restrained the accused not to give abuses. Then Gulab Meena, Shriram @ Sariya and Raghuveer had caused injuries to him. This witness further stated in the cross-examination that when her father had gone to the accused, she had also followed him.

We need not notice the statement of various other witnesses, who had participated in the investigation.

The learned counsel for the appellant has stated that Ashok (P.W. 11) at the time of occurrence was aged 12 years and Laxmi (P.W. 12) was aged 15 years. Hence, both these child witnesses have been tutored. The learned counsel for the appellant further stated that the dispute, if any, was between the deceased Ram Kumar and his brother Gulab Meena, the appellant, Shriram @ Sariya has nothing to do with their family affair. It is further contended that both Gulab Meena @ Gulla and the present appellant, Shriram @ Sariya have been assigned same weapon i.e. Axe and both the injuries can be caused by one weapon. Thus, it is contended that if any, injury was caused in the occurrence same was by Gulab Meena @ Gulla and all the injuries can be caused by him. It is further contended that there was no reason for the children to accompany their father, who had gone to restrain the accused. Much emphasis has been laid on the stray line in the cross-examination of Ashok (P.W. 11), who had stated that he reached at the place of occurrence when the beating had already been given.

We have also examined the site plan (Exhibit-P/6). On perusal of the site plan, we find that the house of Gulab Meena @ Gulla and Rohitash Meena are closely situated. The house of Ram Kumar is also nearby. It has also come in the evidence that on the night of Holika Dahan, the accused were under the influence of liquor and they were giving abuses. We find nothing unusual on the part of the witnesses to have accompanied their father when he had gone to restrain the accused. In the night, the witnesses being children are expected to be at home. As per the site plan (Exhibit-P/6), the distance between the place of occurrence and the place where the Holika Dahan was being burnt is 60 meters and the house of deceased, Ram Kumar is at a distance of 50 meters. The distance is not such that the witnesses cannot watch the occurrence when Holika was being put to fire. Furthermore, when the Holika was being burnt, the children will not remain inside the house but they will be loitering near the place where ceremony of putting Holika on fire was being performed. Thus, the presence of the witnesses at the spot is natural and probable.

Furthermore, we find the argument raised by the learned counsel for the appellant that Gulab Meena @ Gulla is the author of the fatal injury, unacceptable. Ashok (P.W. 11) has stated in categoric terms that the present appellant had caused injury on the back of the head and Gulab Meena @ Gulla had caused injury on the frontal portion. There is fracture of both frontal and occipital bones. As per the opinion of the Medical Board, the cause of death of the deceased, Ram Kumar was Coma due to severe injuries caused on the head. Thus, the injury caused on the occipital region is also sufficient to cause death. We find that the defence has failed to demolish the testimony of two children, namely Ashok (P.W. 11) aged 12 years and Laxmi (P.W. 12) aged 15 years. We can safely place implicit reliance on their testimony, which are further corroborated by the medical evidence along with the fact that in the written report (Exhibit-P/1), leading to registration of FIR (Exhibit-P/3), the first informant, Rohitash (P.W. 1) has specifically stated that due to noise raised by Ashok (P.W. 11), he was attracted to the spot, lend assurance and corroboration to the presence of Ashok (P.W. 11) at the scene of occurrence.

Thus, taking totality of circumstances, we find no reason to set aside the conviction of the appellant for the offence under Section 302 IPC awarded by the trial court. We affirm and uphold the conviction and sentence of the appellant under Section 302 IPC.

Having upheld the conviction of the appellant, Shriram @ Sariya for the offence under Section 302 IPC, we are of the firm view that conviction of the appellant for the offence under Section 3(2)(5) of SC/ST Act, is not justifiable, as the same is not attracted in the facts and circumstances of the present case.

A Division Bench of this Court in the case of Manohar Singh v. 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 v. 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 and Another Vs. State of Rajasthan, (2003) 1 WLC 596 : (2003) 2 WLN 551 . 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, 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 , 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.

Consistent interpretation of law made by various Division Bench of this Court, lead us to conclude that in the present case, injury was not caused on the person of the deceased, Ram Kumar on the ground that he was a member of Scheduled Caste or Scheduled Tribe community.

Consequently, the conviction of the appellant under Section 3(2)(5) of SC/ST Act, along with the sentence awarded on this count by the trial court is set aside. However, we maintain and uphold the conviction of the appellant for the offence of murder as stated by us in the earlier part of the judgment.

As a result of above discussion, the present appeal is disposed of.