At, High Court of Chattisgarh
By, THE HONOURABLE MR. JUSTICE SUNIL KUMAR SINHA & THE HONOURABLE MR. JUSTICE RADHE SHYAM SHARMA
For the Appellants: Ms. Sangeeta Mishra, Advocate. For the Respondent: Neeraj Mehta, Advocate.
Radhe Shyam Sharma, J.
1. This appeals directed against judgment dated 22-11-2005 passed by Special Judge under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (henceforth 'the Act, 1989'), Bilaspur in Special Criminal Case No. 35/2004. By the impugned judgment, accused/appellants Laxmi Prasad and Suresh Kumar have been convicted under Section 302 of the Indian Penal Code and Section 3(2)(v) of the Act, 1989 and sentenced to undergo imprisonment for life and to pay fine of Rs.500/-, in default to further, undergo rigorous imprisonment for six, months and imprisonment for life and to pay fine of Rs.500/-, in default, to further undergo rigorous imprisonment for six months, respectively. The sentence of imprisonment for life awarded for both the offences are directed to run concurrently. In case of default of payment of fine, the sentence of rigorous imprisonment awarded for both the offences are directed to run separately.
2. Case of the prosecution, in brief, is as under:
In the evening of 8-10-2003, Juganu (PW-3) informed deceased Bhagirathi Suryawanshi that paddy crop of his agricultural field is being grazed by buffalo of accused Laxmi. The deceased and his wife Budha Bai (PW-8) went to their agricultural field and urging on the buffalo, took it to the house of accused Laxmi. The deceased told accused Laxmi that his buffalo had grazed paddy crop of his agricultural field. Accused Laxmi asked the deceased to show his agricultural field. The deceased and his wife took accused Laxmi to their agricultural field and showed the grazed paddy crop. Accused Laxmi created a dispute and said that other's cattle would have grazed the field. On account of the dispute, accused Laxmi pushed the deceased and assaulted him with a lathi. Wife of the deceased shouted. On this, accused persons Bharat, Shatruhan, Suresh and Ganesh Mahra also, armed with lathi, came there and began to assault the deceased. All the assailants, after committing marpeet with the deceased, fled towards their houses. The wife of the deceased, screaming, went towards the basti (inhabitation) and narrated the incident to Dilharan, Shankar (PW-2), Laxman Yadav (PW-7), etc. On this, villagers, namely, Laxman Yadav (PW-7), Manharan (PW-9), Lakhan Lai (PW-U), Dev Prasad (PW-13), Saukhi Lal (PW-14) etc. went to the spot, i.e., the agricultural field. They took injured Bhagirathi (the deceased) out of the agricultural field. At that time, injured Bhagirathi had sustained injuries on head, cheek, nape, back etc. On being asked, injured Bhagirathi, groaning, told that marpeet had been committed by accused Laxmi etc. Injured Bhagirathi was taken to Medical College Hospital, Bilaspur for treatment, where the doctor declared him dead. Intimation regarding death of the deceased was sent to Police Station City Kotwali, Bilaspur where Merg No.0/03 was recorded vide Ex. P-13. Lallan Pandey (PW-12), Assistant Sub-Inspector, Police Station City Kotwali, Bilaspur gave notice to Panchas vide Ex.P-14 and prepared Inquest on the dead body of Bhagirathi Suryawanshi vide Ex.P-15. The dead body was sent for post mortem examination to Medical College Hospital, Bilaspur vide Ex.P-16. Dr. Padmacharan Sahu (PW-18) conducted post mortem examination on dead body of the deceased. He gave his report (Ex. P-28), in which he found (i) one lacerated injury, 0.8 cm x 0.3cm x bone deep on outer side of left eye, (ii) bluish contusion, 8 cms x 8 cms on left cheek in front of left ear, (iii) bluish contusion, 43 cms x 12 cms on left side of neck starting from mid line of part of neck going upto nape of neck on left side, (iv) lacerated woun
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, 4 cms x 1.5 cms x bone deep, horizontally present on occipit just left lateral to mid line, (v) lacerated wound, 3.5 cms x 0.5 cm x bone deep on back of skull, 2 cms above and 0.5 cm left to injury No. (iv), (vi) bluish contusion, 28 cms x 28 cms on left side of back starting from nape going down towards left side of back, multiple obliquely placed abrasions were seen. He also found two other injuries. He opined that cause of death was combined effect of coma, shock and hemorrhage as a result of the above injuries.Police Station City Kotwali, Bilaspur informed the incident to Police Station Takhatpur. Police Station Takhatpur recorded Merg Intimation vide Ex.P-19. Police Station Takhatpur registered the crime vide First Information Report (Ex.P-18).During investigation, Inspector Joseph Toppo (PW-16) prepared site-map (Ex. P-20). Memorandum statements of accused persons Laxmi, Bharat, Shatruhan and Suresh were recorded under Section 27 of the Evidence Act. Memorandum statement of accused Laxmi was recorded vide Ex. P-3 and at his instance, a bamboo was seized vide Ex. P-8. Memorandum statement of accused Bharat was recorded vide Ex. P-4 and at his instance, a lathi was seized vide Ex. P-9. Memorandum statement of accused Shatruhan was recorded vide Ex. P-5 and at his instance, a bamboo was seized vide Ex. P-10. Memorandum statement of accused Suresh was recorded vide Ex. P-6 and at his instance, a lathi was seized vide Ex. P-II. Lungi, chaddi (underwear) and hair of the deceased were seized vide Ex. P-7. Seized Lathi were sent to CIMS, Bilaspur for examination vide Ex. P-21. Patwari Dev Kumar Baghel (PW-6) prepared site-map of the place of occurrence vide Ex. P-12. The seized Lungi, Chaddi (underwear) and hair of the deceased were sent to Forensic Science Laboratory, Raipur for chemical examination and report (Ex. P-29) was received therefrom. During investigation, a certificate (Ex. P-27), showing that the deceased belonged to Suryawanshi Caste, was obtained from Naib Tahsildar Jai Uraon (PW-17). Accused persons were arrested vide arrest memo (Ex. P-23, P-24, P-25 and P-26).After completion of the investigation, charge sheet was filed against the appellants and the acquitted accused persons in the Court of Judicial Magistrate First Class. Bilaspur, who, in turn, committed the case to the Court of Special Judge under the Act, 1989, Bilaspur. The learned Special Judge conducted the trial and convicted and sentenced the appellants as mentioned above and acquitted the remaining two accused persons Bharat and Shatruhan.3. The learned Special Judge framed charges against the appellants and the acquitted accused persons under Sections 147,148, 302 read with Section 149 of the Indian Penal Code and Section 3(2)(v) of the Act, 1989. They abjured the guilt.4. In order to bring home the guilt against the appellants and the acquitted accused persons, the prosecution examined Ram Kumar (PW-1), Shankar (PW-2), Juganu (PW-3), Raghubar Das Vaishnav (PW-4), Kamta Prasad (PW-5), Dev Kumar Baghel (PW-6), Laxman Yadav (PW-7), Budha Bai (PW-8), Manharan (PW-9), Dinesh Kumar Tomar (PW-10), Lakhan Lai (PW-11), Lallan Pandey (PW-12), Dev Prasad (PW-13), Saukhi Lai (PW-14), Gandhi Ram Banjare (PW-15), Joseph Toppo (PW-16), Jai Uraon (PW-17) and Dr. Padmacharan Sahu (PW-18). Statements of the appellants and the acquitted accused persons were recorded under Section 313 Cr. P. C. in which they pleaded innocence and false implication. In defence, they examined Smt. Anuradha Pav (DW-1) and Jivrakhan (DW-2).5. Ms. Sangeeta Mishra, learned counsel for the appellants argued that there is no independent eye-witness. Budha Bai (PW-8) is widow of the deceased. She is a relative and highly interested witness. Her presence at the place of occurrence is highly suspicious. Her evidence is contradictory. The deceased was unconscious and he was not in a position to speak or narrate anything about the occurrence to anyone. Therefore, the evidence of oral dying declaration is not reliable. The prosecution did not adduce any evidence to prove commission of offence under Section 3(2)(v) of the Act, 1989. Mere fact that the deceased belonged to Scheduled Caste does not attract the provisions of the Act, 1989. The findings recorded by the learned Special Judge for convicting the appellants under Section 302 IPC and Section 3(2)(v) of the Act, 1989 are unsustainable and the appellants deserve to be acquitted.Alternatively, learned counsel argued that the act of the appellants would not be punishable under Section 302 IPC and even after admitting the entire case of the prosecution, the appellants would be liable for punishment for some lesser offence probably under Section 304 Part II IPC. She placed reliance on Baijnath versus State of Uttar Pradesh, (2008) 3 SCC (Cri) 940 : (AIR 2009 SC 426). Shankarlal versus State of Rajasthan, (2004) 10 SCC 632 : (AIR 2004 SC 3559) : 2004 Cri LJ 2874, State of U. P. versus Dharamraj and another (2003) 9 SCC 39 : (2003 Cri LJ 1522) and Gyan Singh and another versus State of C. G. 2007 (3) CGLJ 359 (DB).6. Shri Neeraj Mehta, learned Panel Lawyer for the State/respondent, supporting the impugned judgment, submitted that the conviction and sentence awarded by the learned Special Judge do not warrant any interference by this Court.7. We have heard rival contentions of the parties and have perused the record of Special Criminal Case No. 35/2004. The conviction of the appellants under Section 302 IPC and Section 3(2)(v) of the Act, 1989 is based on the solitary evidence of witness Budha Bai (PW-8) and oral dying declaration made by the deceased before Laxman Yadav (PW-7), Manharan (PW-9) and Lakhan Lai (PW-11). It is not disputed that Budha Bai (PW-8), being widow of the deceased, is his nearest relative and she is solitary eye-witness of the occurrence.Evidence of Solitary Witness:8. In Ranjit Singh and others versus State of Madhya Pradesh, AIR 2011 SC 255 : (2011 Cri LJ 283), the Honourable Supreme Court held as follows :"17. "… Under the Indian Evidence Act, trustworthy evidence given by a single witness would be enough to convict an accused person, whereas evidence given by half a dozen witnesses which is not trustworthy would not be enough to sustain the conviction. That, no doubt is true; but where a criminal Court has to deal with evidence pertaining to the commission of an offence involving a large number of offenders and a large number of victims, it is usual to adopt the test that the conviction could be sustained only if it is supported by two or three or more witnesses who give a consistent account of the incident. In a sense, the test may be described as mechanical; but it is difficult to see how it can be treated as irrational or unreasonable.18. In Muthu Naicker and Ors. versus State of Tamil Nadu, AIR 1978 SC 1647, this Court explained the aforesaid judgment by stating that in a situation where a witness has been attacked by the members of an unlawful assembly composed of a large number of persons, the Court should carefully consider the question of the credibility of such a witness. Where the Court is of the view that the testimony of such a witness is in the facts and circumstances of the case not reliable, it should insist that such testimony be corroborated by one or more other witness before it can be accepted by the Court.19. ……."There is no rule of evidence that no conviction can be based unless a certain minimum number of witnesses have identified a particular accused as a member of the unlawful assembly. It is axiomatic that evidence is not to be counted but only weighed and it is not the quantity of evidence but the quality that matters. Even the testimony of one single witness, if wholly reliable, is sufficient to establish the identification of an accused as a member of an unlawful assembly. All the same when the size of the unlawful assembly is quite large (as in this case) and many persons would have witnessed the incident"9. In Takdir Samsuddin Sheikh versus State of Gujarat and another, AIR 2012 SC 37 : (2012 Cri LJ 621), the Honourable Supreme Court observed as follows :"10. xxxx xxxxx xxxx(i) xxxx xxxx xxxx(ii) This Court has consistently held that as a general rule the Court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Evidence Act, 1872. But if there are doubts about the testimony, the Court will insist on corroboration. In fact, it is not the number, the quantity, but the quality that is material. The time honoured principle is that evidence has to be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise. The legal system has laid emphasis on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses. It is, therefore, open to a competent Court to fully and completely rely on a solitary witness and record conviction. Conversely, it may acquit the accused in spite of testimony of several witnesses if it is not satisfied about the quality of evidence."10. In Namdeo versus State of Maharashtra, (2007) 14 SCC 150 : (2007 Cri LJ 1819), the Honourable Supreme Court held that it is the quality and not the quantity of evidence which is necessary for proving or disproving a fact. It is clear that Indian legal system does not insist on plurality of witnesses. Neither the legislature (Section 134 of the Evidence Act, 1872) nor the judiciary mandates that there must be a particular number of witnesses to record an order of conviction against the accused. Our legal system has always laid emphasis on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses. It is, therefore, open to a competent Court to fully and completely rely on a solitary witness and record conviction.Evidence of Relative and Interested Witness :11. In Dharnidhar versus State of Uttar Pradesh and others, (2010) 7 SCC 759 : (2010 AIR SCW 5685), the Honourable Supreme Court held as follows :"12. There is no hard-and-fast rule that family members can never be true witnesses to the occurrence and that they will always depose falsely before the Court. It will always depend upon the facts and circumstances of a given case. In Jayabalan versus U.T. of Pondicherry, (2010) 1 SCC 199 : (2010 Cri LJ 2234), this Court had occasion to consider whether the evidence of interested witnesses can be relied upon. The Court took the view that a pedantic approach cannot be applied while dealing with the evidence of an interested witness. Such evidence cannot be ignored or thrown out solely because it comes from a person closely related to the victim.13. Similar view was taken by this Court in Ram Bharosey versus State of U. P., (2010) 1 SCC 722: (2010 Cri U 871), where the Court stated the dictum of law that a close relative of the deceased does not, per se, become an interested witness. An interested witness is one who is interested in securing the conviction of a person out of vengeance or enmity or due to disputes and deposes before the Court only with that intention and not to further the cause of justice. The law relating to appreciation of evidence of an interested witness is well settled, according to which, the version of an interested witness cannot be thrown overboard, but has to be examined carefully before accepting the same."12. In Brahm Swaroop and another versus State of U. P., AIR 2011 SC 280 : (2011 Cri LJ 306), the Honourable Supreme Court held as follows :"21. Merely because the witnesses were closely related to the deceased persons, their testimonies cannot be discarded. Their relationship to one of the parties is not a factor that effects the credibility of a witness, moreso, a relation would not conceal the actual culprit and make allegations against an innocent person. A party has to lay down a factual foundation and prove by leading impeccable evidence in respect of its false implication. However, in such cases, the Court has to adopt a careful approach and analyse the evidence to find out whether it is cogent and credible evidence".13. In Waman and others versus State of Maharashtra, (2011) 7 SCC 295 : (2011 CriLJ 4827), the Honourable Supreme Court held as follows :"17. In Balraje versus State of Maharashtra, (2010) 6 SCC 673 : (2010 Cri LJ 3443), this Court held that the mere fact that the witnesses were related to the deceased cannot be a ground to discard their evidence. It was further held that when the eyewitnesses are stated to be interested and inimically disposed towards the accused, it has to be noted that it would not be proper to conclude that they would shield the real culprit and rope in innocent persons. The truth or otherwise of the evidence has to be weighed pragmatically and the Court would be required to analyse the evidence of related witnesses and those witnesses who are inimically disposed towards the accused.19…."29........ The evidence of a witness cannot be discarded solely on the ground of his relationship with the victim of the offence. The plea relating to relatives' evidence remains without any substance in case the evidence has credence and it can be relied upon. In such a case the defence has to lay foundation if plea of false implication is made and the Court has to analyse the evidence of related witnesses carefully to find out whether it is cogent and credible. (Vide Jarnail Singh versus State of Punjab, (2009) 9 SCC 719 : (AIR 2010 SC 3699), Vishnu versus State of Rajasthan, (2009) 10 SCC 477 : (AIR 2009 SC (Supp) 2374) and Balraje, (2010) 6 SCC 673) : (2010 Cri LJ 3443)".14. Now, in light of the above principles laid down by the Honourable Supreme Court, we shall examine the evidence of Budha Bai (PW-8).15. Budha Bai (PW-8) deposed that she belongs to Kannaujia Suryawanshi Caste. Accused persons are members of Mahara Caste. On the date of incident, in the evening hours, they were present in their house. At that time, son of Ganga, namely, Juganu (PW-3) came to their house and told that buffalo of accused Laxmi had entered their agricultural field. Her husband (the deceased) went towards their field. She also went behind him. They went to the house of accused Laxmi and told him that his buffalo was grazing their agricultural field. Accused Laxmi asked them about the place where the buffalo grazed in the agricultural field and went to their field. Her husband was going ahead, accused Laxmi, who was armed with a Lathi, was going behind him and she was going behind accused Laxmi. Accused Laxmi was abusing her husband. Her husband said accused Laxmi that his buffalo is grazing their agricultural field daily. They reached the agricultural field. She stood up to one side. At the same time, accused Laxmi assaulted her husband on the back of his head with the Lathi. He also gave two Lathi blows on the head of her husband. Thereafter, accused Suresh (cousin (son of sister) of accused Laxmi), who was present before the Court on the date of her deposition, came there and assaulted on the neck of her husband with a Lathi. Accused Suresh also gave Lathi blows on the hands, legs and waist of her husband. He assaulted on many parts of the body. Neck of her husband had swollen. Thereafter, accused Bharat, accused Shatruhan and Ganesh, armed with Lathi, came there. At that time, her husband had fallen in the agricultural field. He was unconscious. When she was requesting to leave her husband, accused Laxmi said that Maar Do Saale Chamara Ko. He further said that her husband be cut in pieces. On her screaming, no villager heard her as the village was far away.16. Budha Bai (PW-8) further deposed that Ganesh, accused Bharat and accused Shatruhan were armed with Lathi. They reached there. Thereafter, she, weeping, came towards the village. When she reached the shop, she saw two boys, namely, Manharan (PW-9) and Shankar (PW-2) standing there. She said them that Laxmi Mahara people had killed her husband. She asked them to pick up and bring her husband. Then, these two witnesses and Gangaprasad, Dev Prasad (PW-13), Manrakhan, Laxman Yadav (PW-7), Lakhan Yadav, Saukhi Yadav and others went towards the agricultural field. They had, picking up, brought her husband to her house. She had narrated the incident to all. Her husband had narrated the incident to all at the house. Lakhan Yadav and Laxman Yadav (PW-7) asked about the assailant. Her husband told them that accused Laxmi, cousin (son of sister) of accused Laxmi, i.e., accused Suresh and others had assaulted him.17. Ram Kumar (PW-1) deposed that house of accused Laxmi is situated adjacent to his house. Agricultural field of deceased Bhagirathi is situated near his house. At that time, the deceased had crop up paddy in his agricultural field. He did not remember the day but deposed that it was getting about 6:45 p. m.; the deceased came to the house of accused Laxmi and said him that his buffalo was grazing the crop of his agricultural field. On the same day, at about 7:30 p.m., he came to know that the deceased had died. He further deposed that he heard the news of death in the morning. Budha Bai (PW-8) was going from her house towards agricultural field. When he asked her what happened, she told him that accused Laxmi had killed the deceased.18. Laxman Yadav (PW-7) deposed that buffalo of accused Laxmi had entered the agricultural field of the deceased. The buffalo was taken to Kanji House by the deceased. The accused requested not to take the buffalo to the Kanji House and he was ready to pay fine. Reputed villagers decided in a meeting to impose fine of Rs.100/- on the accused and the fine of Rs.100/- was realized from the accused. After 2-3 days of this incident, at about 6 p.m., Budha Bai (PW-8), weeping, came from the shop of Dilharan. At that time, he was present in the lane of his house. It was raining a little. Budha Bai (PW-8), weeping, came and said that her husband had been killed by accused persons Laxmi and Suresh.19. Shankar (PW-2) deposed that the incident took place on Wednesday. At about 6:30 - 7:00 p.m., he was going to the grocery, shop of Dilharan to purchase things. Budha Bai (PW-8), screaming, came from the agricultural field and shouted that incident had taken place. She said that her husband had been assaulted.20. Dr. Padmacharan Sahu (PW-18), who conducted post-mortem on dead body of the deceased, found near about 8 injuries on the body of the deceased. Budha Bai (PW-8) deposed that the deceased had sustained injuries on the head, cheek, nape and back. Dr. Padmacharan Sahu (PW-18) also deposed that he found injuries on the cheek, neck and head. The evidence of Budha Bai (PW-8) is duly corroborated by medical evidence. Therefore, the evidence of Budha Bai (PW-8) is cogent and reliable.21. In the instant case, the prosecution has adduced evidence of oral dying declaration also.Evidence of Oral Dying Declaration:—22. In K. Ramchandra Reddy and another versus The Public Prosecutor, AIR 1976 SC 1994,: (1976 Cri LJ 1548), the Honourable Supreme Court has held thus :—"6…..The dying declaration is undoubtedly admissible under Section 32 of the Evidence Act and not being a statement on bath so that its truth could be tested by cross-examination, the Courts have to apply the strictest scrutiny and the closest circumspection to the statement before acting upon it. While great solemnity and sanctity is attached to the words of a dying man because a person on the verge of death is not likely to tell lies or to concoct a case so as to implicate an innocent person yet the Court has to be on guard against the statement of the deceased being a result of either tutoring prompting or a product of his imagination. The Court must be satisfied that the deceased was in a fit state of mind to make the statement after the deceased had a clear opportunity to observe and identify his assailants and that he was making the statement without any influence or rancour. Once the Court is satisfied that the dying declaration is true and voluntary it can be sufficient to found the conviction even without any further corroboration".23. In Meharban Singh and others versus State of Madhya Pradesh, AIR 2002 SC 299 : (2002 Cri LJ 586), the Honourable Supreme Court has held thus :"7. It is important to note that the witnesses not only reached the place of incident but also took steps to take the deceased in a bullock cart to the nearby hospital and this shows that deceased Halkiya must have been alive at that time. While the injured was being taken in the bullock cart, on the way he died and thereafter the dead body was directly taken to the Police Station. There, the First Information Report was lodged and in the FIR, it is mentioned that dead body of Halkiya was in the Police Station. The evidence of PW-1 to PW-3, coupled with the medical evidence and other surrounding circumstances convincingly proved that the dying declaration given by the deceased must have been true and the Sessions Court as well as the High Court was very careful in accepting this dying declaration and wherever there was any doubt as to the involvement of some of the accused, the Court granted the benefit thereof and acquitted those accused. The names of the appellants were disclosed by the deceased to three witnesses who gave their evidence before the Court and the two Courts accepted that evidence and did not find any infirmity or miscarriage of justice in this case. The appeal is without any merits and is dismissed accordingly."24. In Vishram and others versus State of Madhya Pradesh, AIR 1993 SC 250 (1993 Cri LJ 304), the Honourable Supreme Court has held thus :"5. ……P.W.1 in the First Information Report itself has mentioned about the earlier dying declaration and has also given the necessary details. Nothing significant has been elicited in his cross-examination. Likewise, P.W. 5 deposed that she also reached the place of occurrence and found Chandra Shekhar lying unconscious and that her husband Kamal Kishore was conscious and on being asked, he told her that the six appellants attached him and beat him. Thereafter Kamal Kishore was taken to the hospital.25. In Prakash and another versus State of Madhya Pradesh, AIR 1993 SC 65 : (1992 Cri LJ 3703), the Honourable Supreme Court has held thus :"11. …..In the ordinary course, the members of the family including the father were expected to ask the victim the names of the assailants at the first opportunity and if the victim was in a position to communicate, it is reasonably expected that he would give the names of the assailants if he had recognized the assailants. In the instant case there is no occasion to hold that the deceased was not in a position to identify the assailants because it is nobody's case that the deceased did not know the accused persons. It is therefore quite likely that on being asked the deceased would name the assailants"26. Laxman Yadav (PW-7) deposed that Budha Bai (PW-8), weeping, came and said that her husband had been killed by accused persons Laxmi and Suresh. He further deposed that after sometime, he and his brother Lakhan (PW-11) went towards the agricultural field to see the deceased. When they reached there, they saw that Shankar (PW-2), Manharan (PW-9) and Budha Bai (PW-8) were present there. The deceased was lying in the agricultural field. He asked Budha Bai (PW-8) about the assailant. She told names of accused persons Laxmi and Suresh as assailants. She urged that these assailants themselves assaulted the deceased. At that time, the deceased was alive and talking. He asked the deceased about the name of the assailant. He told names of accused persons Laxmi and Suresh as assailants. He told that they had assaulted him with Lathi.27. Manharan (PW-9) deposed that on the date of incident, at about 6:30 p.m., they were present at the shop of one Sahu. Budha Bai (PW-8) came from Bhatha and screamed that assault had taken place. He and Shankar (PW-2) went to the agricultural field along with Budha Bai (PW-8). The deceased was lying in the agricultural field. At that time, he was alive. When he asked, the deceased told him that accused Laxmi had assaulted him.28. Lakhan Lai (PW-11) deposed that on the date of incident, at about 7 p.m., he was present in his house. Budha Bai (PW-8), wife of the deceased, screaming, came and said that her husband had been killed. He went behind her. He saw that the deceased was lying in the agricultural field of Bharariya. Injuries were present on his head and neck. Family members of the deceased had picked up the deceased and took him to his house. When the deceased became conscious, on being asked, he told that accused Laxmi and others had assaulted him.29. Dev Prasad (PW-13) deposed that on the date of incident, in the evening hours, he was present in his house. Budha Bai (PW-8), shouting, came and said that her husband had been killed. Her husband had been assaulted by the accused Laxmi. They went to the agricultural field. He saw that the deceased was lying in the agricultural field. The deceased had sustained injuries on nape and back. On being asked, the deceased told that accused Laxmi had assaulted him. He further deposed that the deceased was picked up and took to the house. Villagers took the deceased to Bilaspur for his treatment.30. Learned counsel for the appellants argued that the deceased had sustained head injuries and he was not in a position to make any statement. In view of the above evidence of Budha Bai (PW-8), Laxman Yadav (PW-7), Lakhan Lai (PW-11) and Dev Prasad (PW-13), the argument advanced by learned counsel for the appellants is not acceptable.31. Dr. Padmacharan Sahu (PW-18) deposed in paragraph 15 that he was unable to state that the deceased became unconscious due to injuries sustained on the head. Looking to the evidence of Laxman Yadav (PW-7) in paragraphs 12 and 13, it appears that when Laxman Yadav (PW-7), and Lakhan Lal (PW-11) reached the place of occurrence, at that time, the deceased was conscious. Manharan (PW-9) deposed that it is wrong to say that when he reached the place of occurrence, at that time, the deceased was unconscious. It is also wrong to say that the deceased did not tell him anything. Therefore, it is evident that when the above witnesses reached the place of occurrence, at that time, the deceased was conscious and was able to make statement.32. From the above, we find that the evidence of oral dying declaration led by the prosecution in the instant case is reliable, admissible in evidence and can be based for conviction of the appellants.33. The prosecution has come up with a definite case that the offence was committed by the appellants and the prosecution has proved its case beyond all reasonable doubt.34. We have carefully examined the evidence of Budha Bai (PW-8). Her evidence is corroborated by oral dying declaration of the deceased made before Laxman Yadav (PW-7), Manharan (PW-9), Lakhan Lai (PW-11) and Dev Prasad (PW-13) and also corroborated by medical evidence. From the evidence of these witnesses, it is crystal clear that they were the appellants who assaulted the deceased with Lathi and cause of death of the deceased was coma and shock as a result of the injuries sustained by him. Therefore, we do not find any infirmity in the finding recorded by the learned Special Judge that the appellants committed murder of the deceased.35. Now, we shall examine whether the appellants committed murder of the deceased on the ground that he was a member of Scheduled Castes?36. Clause (v) of sub-section (2) of Section 3 of the Act, 1989 runs thus :"3. Punishments for offences of atrocities.—(1) xxxx xxxx xxxx(2)Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,—xxxx xxxx xxxx xxxx(v) 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;"37. For application of Section 3(2)(v) of the Act, 1989, it is sine qua non that an offence must have been committed against a person on the ground that such person is a member of the Scheduled Castes or the Scheduled Tribes. In the instant case, we do not find any evidence to hold that the murder was committed on the ground that the deceased was a member of Scheduled Castes. The mere fact that the deceased happened to be a member of Scheduled Castes simplicitor does not attract the provisions of the Act, 1989. Therefore, the conviction of the appellants under Section 3(2) (v) of the Act, 1989 deserves to be set aside.38. Now, we shall examine the matter in light of the provisions of Section 302 vis-a-vis Section 304 of the Indian Penal Code.39. Section 304 of the Indian Penal Code provides the punishment for culpable homicide not amounting to murder. It draws a distinction between the penalty to be inflicted in cases, where, an intention to kill being present, the act would have amounted to murder, but for its having fallen within one of the Exceptions in Section 300 of the Indian Penal Code, and cases in which the crime is culpable homicide not amounting to murder, that means, where there is knowledge that death will be a likely result, but the intention to cause death, or bodily injury likely to cause death, is absent. The first part of Section 304 of the Indian Penal Code applies where there is intention, whereas the second part applies where there is knowledge but the important thing is that before holding the accused guilty under any part of Section 304 of the Indian Penal Code, it has to be observed that a death must have been caused by him under any of the circumstances mentioned in the five Exceptions to Section 300 of the Indian Penal Code, which include death caused while deprived of power of self control under grave and sudden provocation, while exercising in good faith the right of private defence of person or property, and in a sudden fight in the heat of passion without premeditation. Knowledge of consequences which may result in doing an act is quite different than the intention which denotes that a particular consequences should ensure. For attracting the former part of Section 304 of the Indian Penal Code, an element of intention is a factor whereas for attracting the later part, an element of knowledge is a factor. The intention is the purposeful doing of a thing to achieve a particular result, whereas, the knowledge is an awareness which attributes to be well informed that a particular result may happen by doing a thing.40. In the instant case, the dispute arose between the deceased and the accused persons on account of grazing of paddy crop of agricultural field of the deceased by the buffalo of accused Laxmi. The appellants had strong feeling of annoyance against the deceased due to a complaint made by him regarding grazing of paddy crop of his agricultural field. The appellants assaulted the deceased and gave him Lathi blow on his head and near about 8 injuries were found on the body of the deceased. The injuries, which the deceased suffered, clearly shows that the Lathi was used by the appellants with a considerable force and the injuries were caused on the vital parts of the body of the deceased. The nature of the weapon used by the appellants, the manner in which they assaulted the deceased, severity of the blows they dealt against the deceased and the parts of the body which they selected for giving such blows would show that they had an intention to commit murder of the deceased. We are of the considered opinion that in the facts and circumstances of the case, the act of the appellants would not be falling under any exception to Section 300 of the Indian Penal Code and the present cannot be said to be culpable homicide not amounting to murder.41. For the foregoing reasons, the conviction and sentence awarded to the appellants under Section 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 are set aside, but the conviction and sentence awarded to them under Section 302 of the Indian Penal Code are affirmed.
"2012 CrLJ 2204"