Raigarh, Chhattisgarh v. State of Chhattisgarh Through Station House Officer, Police Stati
Case Details
1 ANURADHA TIWARI Digitally signed by ANURADHA TIWARI Date: 2025.01.22 10:34:30 +0530 2025:CGHC:2740-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1699 of 2019 1 - Om Nath Yadav @ Bablu @ Ramsaran Yadav & Another S/o Sankarlal Yadav Aged About 28 Years R/o Kolaibahra (Jamgao), Police Station Chakradhar Nagar, District Raigarh Chhattisgarh, District : Raigarh, Chhattisgarh 2 - Baby @ Bimla Yadav W/o Shankarlal Yadav Aged About 58 Years R/o Police Station Chakradhar Nagar, District Raigarh Chhattisgarh, District : Raigarh, Chhattisgarh versus State of Chhattisgarh Through Station House Officer, Police Station Ajaak, District Raigarh Chhattisgarh, District : Raigarh, Chhattisgarh ... Respondent ... Appellants For Appellants : Mr. Ashish Shrivastava, Senior Advocate along with Mr. Rohishek Verma, Advocate For Respondent-State : Mr. Shailendra Sharma, Advocate Hon'ble Shri Hon'ble Shri Division Bench Ramesh Sinha, Chief Justice Ravindra Kumar Agrawal, Judge Judgment on Board (16.01.2025) Per Ramesh Sinha, Chief Justice (1) This criminal appeal filed by the appellants under Section 374(2) of the Code of Criminal Procedure, 1973 (for short, “CrPC”) is directed against the impugned judgment of conviction and order of sentence 2 dated 28.09.2019 passed in Special Criminal Case under the Atrocities Act No.23 of 2017 (State of Chhattisgarh v. Omnath Yadav and Another), by the Special Judge, constituted under the provision of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989, (for brevity, the “Act of 1989”) Raigarh, District Raigarh (C.G.), whereby they have been convicted and sentenced as under: Conviction Sentence Under Section 458 of Indian Imprisonment for life with fine of Penal Code, 1860 read with Rs.1,000/- and, in default of Section 3(2)(v) of the Act of payment of fine, additional R.I. for 1989 06 months. Under Section 307/34 of Imprisonment for life with fine of Indian Penal Code, 1860 read Rs.1,000/- and, in default of with Section 3(2)(v) of the Act payment of fine, additional R.I. for of 1989 06 months. Under Section 326/34 of R.I. for 10 years with fine of Indian Penal Code, 1860 read Rs.1,000/- and, in default of with Section 3(2)(v) of the Act payment of fine, additional R.I. for of 1989 06 months. Under Section 324/34 of R.I. for 3 years with fine of Indian Penal Code, 1860 Rs.1,000/- and, in default of payment of fine, additional R.I. for 03 months. Under Section 324/34 of R.I. for 3 years with fine of Indian Penal Code, 1860 Rs.1,000/- and, in default of 3 payment of fine, additional R.I. for 03 months. Under Section 324/34 of R.I. for 3 years with fine of Indian Penal Code, 1860 Rs.1,000/- and, in default of payment of fine, additional R.I. for 03 months. Under Section 324/34 of R.I. for 3 years with fine of Indian Penal Code, 1860 Rs.1,000/- and, in default of payment of fine, additional R.I. for 03 months. Under Section 506 Part-II of R.I. for 3 years with fine of Indian Penal Code, 1860 Rs.1,000/- and, in default of payment of fine, additional R.I. for [All the sentences are directed to run concurrently] 03 months. (2) The case of the prosecution, in brief, is that on 29.10.2016 at about 08.30 p.m., at Village Behrapali within the ambit of Police Station Chakradhar Nagar, District Raigarh, accused along with co-accused being a member of an unlawful assembly, were going to enter into the common gathering of the said assembly and in furtherance of that intention, entered into residence of complainant Dhoblal Sidar (PW-1), a member of the Scheduled Tribe Category, armed with deadly weapons like sword, bhujali, knife, stick and with preparation to cause hurt/attack or put in fear of wrongful restraint, committed hidden house trespass at night in violation of the notification issued by the Central Government, 4 with dangerous weapon, i.e., sword in their possession, caused grievous hurt capable of life to Tapaswini Sidar (PW-2), a member of the Scheduled Tribe category, voluntarily caused grievous hurt to applicant Dhoblal Sidar (PW-1) and Tejaram, members of the Scheduled Tribe category, voluntarily caused simple hurt to the victim Saraswati (PW-9) and voluntarily caused hurt to Seema Sidar (PW-3), and caused criminal intimidation by threatening to kill the complainant Dhoblal Sidar (PW-1) and other injured persons with an intent to cause terror and thereby, they said to have committed offences under Section 458 of Indian Penal Code, 1860 (for brevity, ‘IPC’) read with Section 3(2)(v) of the Act of 1989, under Section 307/34 of IPC read with Section 3(2)(v) of the Act of 1989, under Section 326/34 of IPC read with Section 3(2) (v) of the Act of 1989, under Section 324/34 of IPC (3 counts) as well as under Section 506 Part-II of the IPC. (3) Further case of the prosecution is that, when the accused Omnath Yadav molested the daughter of complainant Dhoblal Sidar (PW-1), who was studying in Class-X on her way to school, a report was lodged by the complainant in AJAK Police Station, Raigarh stating therein that on the night of 29.10.2016, at about 8-8.30 pm, complainant (PW-1) was watching TV with his family after having dinner, at that relevant time, one Tejaram of the village had come to the complainant’s house and was sitting under the shade and talking to his wife and mother, namely, Tapaswini Sidar (PW-2) and mother Saraswati (PW-9), respectively. At the same time, accused Bebi Yadav and her sons Omnath Yadav, 5 Somnath Yadav and two boys entered the house of complainant Dhoblal Sidar (PW-1) with sword, dagger and stick in their hands and started threatening to take back the complaint lodged against accused Omnath Yadav, otherwise they will kill him as also kidnapped his daughter. They all entered the TV room and started pulling the elder daughter of complainant namely Sapna Sidar (PW-4) by holding her hair, hands and legs. During this, when complainant Dhoblal Sidar (PW- 1), his mother Saraswati (PW-9), his wife Tapaswani Sidar (PW-2) and Seema Sidar (PW-3) protested, accused Omnath attacked Seema Sidar (PW-3) with the help of sword in his hand with the intention of killing her, but complainant did not let them go. When the accused tried to stop them, his hand was cut by the sword. Two persons started beating complainant with their hands and fists. Meanwhile, accused attacked complainant’s neck with a sharp weapon with an intention to kill him. When complainant Dhoblal Sidar (PW-1) stopped it with his left hand, his left hand was cut by an axe. Meanwhile, accused Baby Yadav hit Tapaswani (wife of complainant) (PW-2) in her thigh near left leg with a sharp weapon, i.e. a knife as also hit Saraswati (PW-9) near right ear. She also assaulted Seema Sidar (PW3) with hands and fists and started pulling Sapna Sidar (PW-4) by holding her hair. When Tejram Gupta tried to intervene, he was also beaten with a sharp sword by accused Omnath Yadav. Tapaswani Sidar (PW-2) was assaulted with the help of sword by Omnath. When the village Kotwar Jaiprakash Gupta arrived at the spot, all the accused fled from the spot. 6 (4) The complainant Dhobalal Sidar (PW-1) lodged a report regarding the incident committed by the accused at Chakradhar Nagar Police Station on 29.10.2016, on the basis of which, Amolak Singh Dhillon (PW-7) registered the crime bearing Crime No.360/2016 against the accused under Sections 307, 450, 458, 324, 323, 506, 34 of the Indian
Legal Reasoning
Penal Code and First Information Report (Ex.P.1) was lodged, which was immediately sent to the Court having jurisdiction. In the course of investigation, the investigating officer DSP Amolak Singh Dhillon (PW-7) prepared the mutarjar form and sent the complainant Dhobalal Sidar (PW-1) as well as other injured persons to Medical College, Raigarh for medical examination. Medical report (Ex.P/7A) was prepared after medical examination of injured Tapaswini Sidar (PW-2) by Dr. Prakash Kumar Chetwani (PW-8), who was posted at Medical College, Raigarh. According to medical examination report (Ex.P/7A), the injuries caused to injured Tapaswini Sidar (PW-2) were found to be caused by a sharp object six hours before the examination and were of serious in nature. Medical report (Ex.P/4A) was prepared after medical examination of injured complainant Dhobalal Sidar (PW-1), according to which, injuries caused to injured Dhobalal Sidar were found to be caused by a hard and sharp object within six hours of the examination and were of serious in nature. Medical report (Ex.P/9A) was prepared after medical examination of injured Seema Sidar (PW-3), according to which, injuries caused to her were found to be of ordinary nature and were caused by hard and blunt object. Medical report (Ex.P/10A) was prepared after 7 medical examination of injured Saraswati (PW-9), according to which, injuries caused to her were found to be caused by sharp object six hours before examination and the nature of injuries was simple. Medical report (Ex.P/11A) was prepared after medical examination of injured Tejaram, according to which, injuries caused to him were found to be caused by sharp object six hours before examination and the nature of injuries was found to be serious. According to X-ray report (Ex.P/13A), injured Tapaswani Sidar (PW-2) was found to have a fracture in the distal phalanges of the middle finger of the left hand. Similarly, injured Tejaram was found to have a fracture in the proximal phalanges bone of the middle finger of the left palm, according to his X-ray report (Ex.P/14). (5) During the course of investigation, Investigating Officer DSP Amolak Singh Dhillo (PW-7) visited the place of incident on 30.10.2016 and prepared sight map vide Ex.P/2 in the presence of witnesses. The investigation officer gave a written complaint to the Tehsildar to prepare the sight map of the incident site from the concerned Patwari and the report prepared by the Patwari as also the Panchnama along with sight map were obtained in the case. On 28.02.2017, the social status certificate of the complainant Dhoblal Sidar (PW-1) was seized by Sub- Inspector Amit Patle (PW-14) in the presence of witnesses as per seizure memo Ex.P/23. On 30.10.2016, DSP Amolak Singh Dhillon (PW-7) seized blood stained soil, plain soil and a bamboo stick from the incident site, which had blood stains at many places, the length of the 8 stick was 28 inches and thickness was 04 inches vide Ex.P/5. On 07.11.2016, one towel, green petticoat and printed red and white pillow cover having blood stains were seized in front of witnesses at the instance of the complainant as per seizure memo Ex.P/3. During the investigation, statements of the complainant Dhoblal Sidar (PW-1), injured Tapaswini Sidar (PW-2), Saraswati (PW-9), Tejaram Gupta and Jai Prasad were recorded. (6) On 28.02.2017, at about 12:00 p.m., Investigating Officer/Deputy Superintendent of Police Virendra Kumar Sharma (PW-11) took accused Omnath Yadav into custody and recorded his memorandum statement vide Ex.P/19 in presence of witnesses Meenketan and Gopal Gupta at AJAK Police Station, Raigarh. Based upon the memorandum statement of the accused Omnath alias Bablu, the weapon used in the incident, i.e., a sharp iron sword (total length 12 inches, cane of length 4.50 inches, fruit of 7.50 inches) covered with orange coloured cloth and written SY in English, was seized in front of witnesses vide seizure memo Ex.P/20. On 28.02.2017, accused Omnath alias Bablu and co- accused Baby alias Bimla Yadav were arrested in front of witnesses vide arrest memo Ex.P/21 and Ex.P/22. Information regarding the arrest of the accused was given to their families. After completion of the investigation, information was received regarding action being taken against accused Omnath under Section 173 (8) of the Cr.P.C. regarding his absconding and the charge-sheet for trial against the accused Omnath alias Bablu and Baby alias Bimla Yadav was filed on 07.05.2017. 9 (7) After the statement of witnesses were recorded and investigation is completed, the appellants were charge-sheeted for the aforesaid offences in the competent criminal Court having jurisdiction, which was thereafter committed to the Court of Sessions for hearing and trial in accordance with law, in which, the appellants abjured their guilt and entered into defence by stating that they are innocent and have been falsely implicated. (8) The prosecution in order to prove its case examined as many as 14 witnesses and exhibited 23 documents, whereas in order to prove the defence, appellants have not been examined any witnesses, but exhibited 04 documents. (9) The learned trial Court after appreciating the oral and documentary evidence available on record, proceeded to convict the appellants for offence punishable under Section 458 of IPC read with Section 3(2)(v) of the Act of 1989, under Section 307/34 of IPC read with Section 3(2)(v) of the Act of 1989, under Section 326/34 of IPC read with Section 3(2)(v) of the Act of 1989, under Section 324/34 of IPC (3 counts) as well as under Section 506 Part-II of the IPC and sentenced them as mentioned herein-above, against which this appeal has been preferred by the appellants questioning the impugned judgment of conviction and order of sentence.
Legal Reasoning
(10) Mr. Ashish Shrivastava, learned Senior Counsel appearing for the 10 appellants would submit that the learned trial Court is absolutely unjustified in convicting the appellants for the aforesaid offences. He further submits that in view of questions framed and answers given by the complainant Dhoblal Sidar (PW-1) in his statement before the Court, the learned trial Court has erred in law while holding the appellant guilty for the offences in question. It has been contended that there are various omissions and contradiction in the statements of prosecution witnesses. It has been further contended that all the injuries caused to the complainant and his family members are simple in nature and not amounting to grievous hurt, as such, the appellants be acquitted for the charges levelled against them. Learned counsel vehemently argued that the appellants have not committed any offence with the complainant party knowing fully well that they belong to Scheduled Caste community and, as such, their conviction for offence under Section 3(2)(v) of the Act of 1989 is liable to set aside. Hence, the present appeal deserves to be allowed. (11) Per-contra, Mr. Shailendra Sharma, learned State counsel would submit that prosecution has been able to prove the offences beyond reasonable doubt by leading evidence of clinching nature. It is further submitted on behalf of the respondent-State that in view of statements of injured witnesses, namely Dhoblal Sidar (PW-1), Tapaswani Sidar (PW-2), Seema Sidar (PW-3), Sapna Sidar (PW-4) as well as Saraswati (PW-9), wherein they have clearly narrated the incident and implicated the appellants to be the author of the crime in question, coupled with 11 other evidence available on record, the trial Court has rightly convicted the appellants for the offences mentioned hereinabove and it is not a case where sentence of the appellants can be converted or reduced to any extent. Thus, the present appeal is liable to be dismissed. (12) We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. (13) Now, the question for consideration would be whether the accused/appellants are the perpetrator of the crime in question, which the learned trial Court has recorded in affirmative by relying upon the testimonies of Dhoblal Sidar (PW-1), Tapaswani Sidar (PW-2), Seema Sidar (PW-3), Sapna Sidar (PW-4), Saraswati (PW-9) as well as Dr. Prakash Kumar Chetwani (PW-8) and their medical reports (Ex.P/4A, Ex.P/7A, Ex.P/9A and Ex.P/10A) and X-ray report (Ex.P/13A) of Tapaswani Sidar (PW-2). (14) The complainant Dhoblal Sidar (PW-1) has deposed in his evidence that about a year back, the accused Omnath, Somnath and Baby were drunk and came to his house at about 8-8.30 p.m. and abused his daughter Seema saying 'saala madarchod, beimaan, madarchod gond aaj tere ko chhodenge nahin'. He further deposed that earlier, accused Omnath had molested his daughter Seema, due to which, he lodged a report against accused Omnath and he threatened him to withdraw that case. When the accused came to his house, they 12 were carrying swords, sticks, knives as well as daggers. Accused Omnath was holding an iron dagger, accused Somnath was holding an iron sword and accused Baby Yadav was holding a knife.The accused Somnath was thrusting a sword into the stomach of his daughter Seema, then he stopped the sword with his hand, due to which the sword of accused Somnath entered into his wrist in front of elbow of right hand. Thereafter, accused Omnath Yadav tried to attack his neck with a dagger, which he stopped with left hand, then the dagger hit the palm of left hand, due to which, he became unconscious. He further deposed in his examination-in-chief that his wife Tapaswani Sidar was injured on her head and right thigh, but as he was unconscious, he could not see which accused beaten her. Thereafter, all the family members went to the hospital in an Ambulance. In the hospital, his wife told to him that accused Omnath has assaulted her, due to which she got a head injury, but she did not tell that who caused the injury on leg. He further deposed in paragraph-4 that accused Baby Yadav assaulted his mother Saraswati with a knife, which caused into her right ear. His another daughter Sapna was beaten up by the accused and she fell down due to pushing and shoving, but it was a night time, as such, he could not see which accused assaulted Sapna. He also deposed in paragraph-5 of his evidence that his friend, namely, Tejram (who has not been examined before the trial Court) has also got injury on his finger next to the little finger of left hand, which was cut and only skin was left on it, but he could not see that who had assaulted Tejaram. Tejaram told 13 him in the hospital on the night of the incident that accused Omnath Katara has assaulted him, due to which his finger was injured. Tejaram's finger was bandaged and he was treated in the hospital at Raipur and Sundargarh. There was heavy bleeding on the finger of Tejram, due to the said injury, about a month after incident, Tejaram died. (15) Likewise, Tapaswani Sidar (PW-2) has stated in her evidence that almost a year back, during Diwali, around 8-8.30 p.m., accused Baby along with Omnath and Somnath entered into her house and accused Omnath was carrying a big weapon like a knife and Baby was carrying a weapon like a sword. She further deposed that Omnath had taken her daughter Seema's bag and abused her, regarding which a report was filed against accused Omnath, the accused were ased to take back that case. Accused Omnath and Baby Yadav had assaulted her on the head, due to which, she suffered severe injury on the head as well as on the middle finger of left hand and left thigh. Accused Somnath had beaten her husband with hands and fists as well as he knocked him down. They also assaulted her mother-in-law. Accused beaten her daughter Seema with fists. Tejaram Gupta was present at the time of the incident and the accused beaten him, due to which his left hand’s finger was cut and later, Tejaram died due to the said injury. (16) Seema Sidar (PW-3), Sapna Sidar (PW-4) and Saraswati (PW-9) have adopted the version of Dhoblal Sidar (PW-1) and Tapaswani Sidar (PW-2). 14 (17) Dr. Prakash Kumar Chetwani (PW-8), who examined the complainant and other injured witness has stated in his examination-in- chief that on 30.10.2016, Assistant Sub Inspector, namely, D.P. Bhardwaj of Chakradhar Nagar Police Station, Raigarh brought Ahita Tapaswani Sidar, wife of Dhoblal Sidar, age 38 years, resident of Behrapali, Raigarh for examination and upon examination, he found following injuries :- “1) There was a 10 cm long curved torn wound in the middle portion of the skin of the head down to the depth of the bone, from which bleeding was taking place. 2) There was a 2 cm long cut wound on the outer side above the left knee, deep into the skin, from which blood was oozing out. 3) There was a 3 cm long cut wound between the index and middle finger of the left hand, which was deep up to the skin and was bleeding. 4) There was swelling and pain in the middle finger of the left hand.” He had advised for X-ray of the palm of her left hand. In his opinion, the above-mentioned injuries No.1, 2 and 3 were of grievous 15 nature and were caused by sharp objects and injury No. 4 was caused by a blunt object, the nature of which can be given after the X-ray report of the injury was obtained. He opined that all the injuries were caused within 06 hours before the examination. The examination report given by him is Ex.P/7A. He further deposed that on 26.05.2017, a letter was received from constable Rohit Kumar Patle, number 723, Ajak Police Station, Raigarh, for query to the effect that if injured was not treated immediately, then death was possible? In this regard, he told on the basis of MLC report that if injured was not brought for immediate treatment, then she could have died due to excessive bleeding caused by the head injury. The query report given by him is Ex.P/12. The X-ray report of hand of the injured dated 30.10.2016 vide X-ray No.11514 was observed on by him on 31.12.2015 and he found that injured had a fracture in the distal phalanges of the middle finger of her left hand. The X-ray report is Ex.P/13. (18) Dr. Praksah Kumar Chetwani (PW-8) has further deposed in paragraph-6 of his examination-in-chief that on 30.10.2016, injured Dhobalal Sidar (PW-1) was brought for examination by Assistant Sub Inspector, D.P. Bhardwaj of Chakradhar Nagar Police Station, Raigarh and upon examination, he found following injuries :- “1) There was a 5 cm long cut wound on the thinner part of the left palm of the injured person, which was deep upto the skin and 16 was oozing blood. 2) There was a 2 cm long cut wound on the back side of the right forearm of the injured person, which was deep upto the skin and was bleeding.” According to him, all the injuries were of grievous nature, which was caused by sharp objects. The time of injuries was within 06 hours before the examination. The examination report given by him is Ex.P/8A. (19) Dr. Prakash Kumar Chetwani (PW-8) has also examined Seema Sidar (PW-3) and found following injuries:- “1) There was a slight swelling in the right parietal region, size of which was 2 x 2 cm. 2) There was a slight pain in the little finger, ring finger and middle finger in the right palm.” According to him, the above-mentioned injuries were of ordinary nature and were caused by hard and blunt objects. The duration of the injuries cannot be stated with certainty and the medical report is Ex.P/9A. (20) Injured Saraswati Sidar (PW-9) has also been examined by Dr. Prakash Kumar Chetwani (PW-8), who found following injuries :- 17 “1) There are multiple cuts on her right ear and 03 cm long skin-deep cut over her pinna. Skin-deep cut on the outer part of the right ear external auricle, from which blood was coming out. 2) She had 04 cm long bruise in the left scapular region, in which there was a slight swelling.” According to him, the above injuries were of simple nature. Injury No.01 was caused by a sharp object and injury No. 02 was caused by a hard and blunt cylindrical object. Injury No. 01 was caused within 06 hours before the test and injury No. 02 was caused within 24 hours before the test. Her medical report is Ex.P/10A. (21) Tejaram Gupta son of Ganesh Ram Gupta, who got injury on the same incident has also been examined by Dr. Prakash Kumar Chetwani (PW-8) and upon examination, he found following injuries :- “1) There was a 4 cm long cut wound on the lower part of the middle finger of the left hand, which was deep upto the skin and was bleeding, due to the injury, he was unable to move that finger. 18 2) There was a 3 cm long cut wound on the index finger of the left hand, which was deep up to the skin and was bleeding.” He had advised X-ray of the left palm of the injured and according to his opinion, above-mentioned injuries were of grievous nature and were caused by a sharp object. The time of the injuries was within 06 hours before the examination. The medical examination report is Ex.P/11A. On 17.03.2017, he observed the X-ray report of injured Tejram, upon which, he found that the injured had a fracture of the proximal phalanges bone of the middle finger of left palm and given its report vide Ex.P/14. (22) From the evidence of Dr. Prakash Kumar Chetwani (PW-8), it is clear that except one head injury to Tapaswani Sidar (PW-2), all the injured persons including complainant, namely, Dhoblal Sidar (PW-1), Tapaswani Sidar (PW-2), Seema Sidar (PW-3) and Saraswati (PW-9) had not suffered any grievous injury, which was likely to endanger human life. In such a situation, looking to the evidence available on record, a case of attempt to murder is not made out, but it is not ignored that the appellants have caused injuries to the complainant as well as other family members. As such, we hereby affirm the finding of the trial Court that it is the appellants who are committed such offence and they are the perpetrator of the crime in question. (23) Now the question would be whether the learned trial Court is 19 justified in convicting the appellants for offence under Section 3(2)(v) of the Act of 1989, for which, they have been sentenced for life imprisonment, as contended by learned counsel for the appellants ? (24) In order to answer this plea, it would be relevant to take note of the fact that the date of incident in the instant case is 07.11.2016, whereas Section 3(2)(v) of the Act of 1989 was amendment w.e.f. 26.01.2016 by Act 1 of 2016. Prior to its amendment w.e.f. 26.01.2016, Section 3(2)(v) stood as under: “3. Punishment for offences of atrocities - (1) xxx xxx (2) Whoever, not being a member of a Scheduled Caste or Scheduled Tribe - (i) to (iv) xxx xxx (v) 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;” Prior to its amendment w.e.f. 26.01.2016, the unamended portion of Section 3(2)(v) was: 20 “on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member” After the amendment, the substituted portion of Section 3(2)(v) is: “knowing that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member.” (25) The unamended provision of Section 3(2)(v) of the Act of 1989 came to be considered before the Supreme Court in the matter of Patan Jaman Vali v. State of Andhra Pradesh 1 wherein their Lordships have held that it has to be established by the prosecution on the basis of evidence adduced that the accused has committed sexual intercourse/crime on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe community and held as under:- “58. ….We agree with the Sessions Judge that the prosecution's case would not fail merely because PW1 did not mention in her statement to the police that the offence was committed against her daughter because she was a Scheduled Caste woman. However, there is no separate evidence led by the prosecution to show that the accused committed the offence on the basis of the caste identity of PW2. While it would be reasonable to presume that the accused knew the caste of PW2 since village communities are tightly knit and the accused was also an acquaintance of PW2's family, 1 AIR 2021 SC 2190 21 the knowledge by itself cannot be said to be the basis of the commission of offence, having regard to the language of Section 3(2) (v) as it stood at the time when the offence in the present case was committed. As we have discussed above, due to the inter-sectional nature of oppression PW2 faces, it becomes difficult to establish what led to the commission of the offence – whether it was her caste, gender or disability. This highlights the limitation of a provision where causation of a wrongful act arises from a single ground or what we refer to as the single axis model. 59. It is pertinent to mention that Section 3(2) (v) was amended by the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015, which came into effect on 26 January 2016. The words “on the ground of” under Section 3(2) (v) have been substituted with “knowing that such person is a member of a Scheduled Caste or Scheduled Tribe”. This has decreased the threshold of proving that a crime was committed on the basis of the caste identity to a threshold where mere knowledge is sufficient to sustain a conviction… 60. xxx xxx xxx 61. However, since Section 3(2)(v) was amended and Clause (c) of Section 8 was inserted by Act 1 of 2016 with effect from 26 January 2016 these amendments would not 22 be applicable to the case at hand. The offence in the present case has taken place before the amendment, on 31 March 2011.
Decision
Therefore, we hold that the evidence in the present case does not establish that the offence in the present case was committed on the ground that such person is a member of a SC or ST. The conviction under Section 3(2)(v) would consequently have to be set aside.” (26) After the amendment to the provision of Section 3(2)(v) of the Act of 1989, the wording of the substituted portion is “knowing that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member”. The word “knowing” has been defined in the Black’s Law Dictionary, Eighth Edition, Page 888, — “1. Having or showing awareness or understanding; well-informed. 2. Deliberate; conscious". (27) In the matter of Shashikant Sharma & Ors. v. State of Uttar Pradesh & Anr.2, Section 3(2)(v) of the Act of 1989 came to be considered before their Lordships of the Supreme Court, wherein it has been held that in order to commit offence punishable under Section 3(2) (v) of the Act of 1989 (as amended), there must be allegation that the accused not being a member of Scheduled Caste or Scheduled Tribe committed an offence under the provision of IPC punishable with imprisonment for 10 years or more on a member of Scheduled Caste or 2 2023 SCC Online SC 1599 23 Scheduled Tribe knowing that such person belongs to the said community. (28) Bearing in mind the aforesaid principle of law laid down by their Lordships of the Supreme Court qua Section 3(2)(v) (as amended w.e.f. 26.01.2016), it is quite vivid that from the entire material available on record, it is evident that no legally admissible evidence has been led to prove that appellants have committed an offence knowing fully well that she belongs to Scheduled Caste/Scheduled Tribe community. Section 3(2)(v) of the Act of 1989 (as amended) can be pressed into service only if it is proved beyond reasonable doubt that the offence has been committed on a member of Scheduled Caste or Scheduled Tribe community knowing that such person belongs to the said community. The prosecution could have brought legal evidence on record to show that the appellants had the well informed knowledge that victim belongs to Scheduled Caste/Scheduled Tribe community, therefore, having regard to the language of Section 3(2)(v) of the Act of 1989 as it stood after its amended w.e.f. 26.01.2016 and further the prosecution must have led separate evidence to demonstrate that appellants have committed the offence in question knowing fully well the caste identity of the complainant as the certificate issuing authority has not been examined by the trial Court, in light of the decision of Shashikant Sharma (supra), the conviction of the appellants for offence punishable under Section 3(2)(v) of the Act of 1989 and the sentence of imprisonment for life, as awarded by the trial Court, is liable to be set 24 aside. (29) Concludingly, the conviction and sentence of the appellants for offence punishable under Section 3(2)(v) of the Act of 1989, as imposed upon them by the learned trial Court, is hereby set aside. (30) Conviction and Sentence of Appellant Omnath Yadav :- U/s 458 of IPC It is found proved that the appellant Omnath Yadav had committed the offence of house- breaking in the night after preparing for the assault on the victims, therefore, he is sentenced to R.I. for 04 years, with fine of Rs.1,000/-, in default of payment of fine, additional R.I. for one month. U/s 307/34 of IPC From the evidence of injured Tapaswani (PW-2), the appellant Omnath Yadav assaulted her on the head with a weapon like a big knife, by which she received grievous injuries on her head. The injuries found on the head of victim Tapaswani (PW-2) are also found to be grievous as stated by Dr. Prakash Kumar Chetwani (PW-8), who opined in the quarry report Ex.P/12 that death was possible due to excessive bleeding from head injury if she would not have treated in time. 25 Head is a vital part of the body and the appellant caused grievous injuries on the head of the victim PW-2, therefore, the appellant Omnath Yadav is liable to be convicted under Section 307 of IPC instead of Section 307/34, and he is sentenced for R.I. for 7 years with fine of Rs.1,000/-, in default of payment of fine, additional RI for one month. U/s 326/34 of IPC From the evidence of Tapaswani (PW-2), Seema Sidar (PW-3), Sapna Sidar (PW-4) and Saraswati (PW-9), it is proved that Tejram (injured) was assaulted by the appellant Omnath Yadav by the weapon which he was having in his hand. Tejram received grievous injuries over his Left palm, having fracture of the proximal phalanges of Left Middle finger. The allegation of assault upon Tejram is only upon the appellant, Omnath Yadav therefore, he is convicted under Section 326 of IPC instead of 326/34 of IPC for voluntarily causing grievous hurt by a dangerous weapon, and he is sentenced for R.I. for 5 years with fine of Rs.1,000/-, in default of payment of fine, additional R.I. for one month. U/s 324/34 of IPC The victim Dhoblal (PW-1) received injuries on 26 left palm and right forearm and as per the opinion of doctor, the injuries were grievous in nature, however, there was no fracture of the said part and the injuries were found to be of skin deep which does not come under the definition of grievous hurt as defined under Section 320 IPC. Therefore, the appellant Omnath Yadav is convicted for the offence under Section 324 IPC for voluntarily causing hurt by dangerous weapon to victim Dhoblal (PW-1). U/s 323/34 IPC The victim Seema Sidar (PW-3), received simple injuries on her right parietal region and little ring and middle finger, but as per her evidence she was being assaulted by two other accused persons whom she could not identify by their names. She has not stated that present appellant has assaulted her. Therefore, the present appellant is not responsible for causing simple injuries to victim Seema Sidar, PW-3. Therefore, the appellant-Omnath Yadav, is acquitted from the offence under Section 323/34 IPC. U/s 506-Part-II IPC From the evidence of Dhoblal (PW-1), 27 Tapaswani (PW-2), Seema Sidar (PW-3), Sapna Sidar (PW-4) and Saraswati (PW-9) that the appellant Omnath Yadav threatened them to withdraw the case which was registered against them on report made by Seema Sidar (PW-3) for outraging her modesty, and thereby, the appellant Omnath Yadav, is also held guilty for the offence under Section 506-Part-II IPC and his sentence including fine amount is affirmed. (31) Conviction and Sentence of Appellant Baby @ Bimla Yadav :- U/s 458 of IPC- It is found proved that the appellant Baby Yadav had committed the offence of house-breaking in the night after preparing for the assault on the victims, therefore, she is sentenced to R.I. for 04 years, with fine of Rs. 1,000/-, in default of payment of fine, further R.I. for 01 month. U/s 307/34 of IPC From the evidence of injured Tapaswani (PW-2), the appellant Omnath Yadav assaulted her on the head with a weapon like a big knife, by which she received grievous injuries on her head. The allegation against the appellant Baby @ Bimla is that, she caused injuries on her left palm by 28 which she received injuries on index and middle finger of left hand. The injuries found on her left hand was found to be grievous in nature and as per the doctor who medically examined her, fracture was found on distal phalange of middle finger of left hand. The said fracture of left middle finger comes under the definition of grievous hurt defined under Section 320 IPC. Therefore, the appellant Baby @ Bimla is convicted for the offence under Section 326 IPC instead of Section 307/34 IPC and she is sentenced for the offence under Section 326 IPC for RI for four years with fine of Rs.1,000/-, in default of payment of fine amount, additional RI for one month. U/s 326/34 of IPC From the evidence of Tapaswani (PW-2), Seema Sidar (PW-3), Sapna Sidar (PW-4) and Saraswati (PW-9), it is proved that Tejram (injured) was assaulted by appellant Omnath Yadav and there is no allegation that Tejram was also assaulted by Baby @ Bimla. Therefore, she is acquitted from the offence under Section 326/34 IPC for voluntarily causing grievous hurt by dangerous weapon to injured Tejram. U/s 324/34 of IPC The victim Dhoblal (PW-1) have not levelled any 29 allegation against the appellant Baby @Bimla that she also assaulted him by knife or any weapon, but Saraswati Bai (PW-9) has stated that appellant Baby has assaulted her by knife by which she received injuries on her right ear and left scapular region. As per the evidence of Dr. Prakash Kumar Chetwani (PW-8), the injuries were simple in nature. Therefore, the appellant Baby @ Bimla is convicted for the offence under Section 324 IPC for voluntarily causing hurt by dangerous weapon to victim Saraswati (PW-9) and sentenced for R.I. for two years with fine of Rs.1,000/-, in default of payment of fine, additional R.I. for one month. U/s 323/34 IPC The victim Seema Sidar (PW-3), received simple injuries on her right parietal region and little ring and middle finger, but as per her evidence she was being assaulted by two other accused persons whom she could not identify by their names. She has not stated that the present appellant has assaulted her and therefore the appellant Baby @ Bimla is not responsible for causing simple injuries to victim Seema Sidar 30 (PW-3). Therefore, the appellant Baby @ Bimla is acquitted from the offence under Section 323/34 IPC. U/s 506-Part-II IPC In the evidence, there is no allegation against appellant Baby @ Bimla that she also threatened them to withdraw the case which was registered against appellant Omnath by Seema Sidar (PW-3) for outraging her modesty, and thereby, the appellant Baby @ Bimla is acquitted from the offence under Section 506-Part-II IPC and her sentence including fine amount is affirmed. (32) Consequently, this criminal appeal is partly allowed to the extent indicated herein-above. The impugned judgment of conviction and order of sentence dated 28.09.2019 is modified to the extent indicated herein- above. The appellant No.1 Omnath Yadav @ Bablu @ Ramsaran Yadav is in jail. The appellants are entitled for their undergone period. He be released forthwith, if not required in any other case and the appellant No.2 Baby @ Bimla Yadav is stated to be on bail, her bail bonds and sureties stand discharged. (33) Keeping in view the provisions of Section 437-A CrPC (now Section 481 of the Bhartiya Nagarik Suraksha Sanhita, 2023), the appellants are directed to forthwith furnish a personal bond in terms of 31 Form No.45 prescribed in the Code of Criminal Procedure of sum of Rs.25,000/- with one surety in the like amount before the Court concerned which shall be effective for a period of six months along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the aforesaid appellant on receipt of notice thereof shall appear before the Hon’ble Supreme Court. (34) The trial Court record along with the copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action. Sd/- (Ravindra Kumar Agrawal) Judge Sd/- d/- (Ramesh Sinha) Chief Justice Anu