Khuman Singh vs The State Of Madhya Pradesh

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1283 OF 2019 (Arising out of SLP(Crl.) No.6647 of 2018)

KHUMAN SINGH …..Appellant

VERSUS

STATE OF MADHYA PRADESH ….Respondent

JUDGMENT

R. BANUMATHI, J.

Leave granted.

2. This appeal arises out of the judgment dated 02.02.2018

in Criminal Appeal No.799 of 2006 passed by the High Court of

Madhya Pradesh at Gwalior Bench in and by which the High

Court affirmed the conviction of the appellant-accused under

Section 302 IPC and under Section 3(2)(v) of the Scheduled

Castes and Scheduled Tribes (Prevention of Atrocities) Act, Signature Not Verified Digitally signed by ANITA MALHOTRA Date: 2019.08.27 1989 and the sentence of life imprisonment imposed upon him. 16:56:14 IST Reason:

3. Brief facts which led to filing of this appeal are as under:-

1

On 14.08.2005 at about 11:00 AM, complainant-Rajaram

(PW-1) along with his brother Raghuveer (PW-2), deceased

Veer Singh and relative Badam Singh (PW-7) had gone to

cultivate the fields and for grazing their cattle. When deceased

Veer Singh was cultivating the field and others were grazing the

cattle, appellant-accused Khuman Singh came to the field of

deceased Veer Singh and left his buffaloes for grazing.

Deceased Veer Singh objected to it and drove the buffaloes of

the appellant-accused out of his field on which, appellant

became furious and started abusing and scolding the deceased

that how the deceased who belongs to Khangar Caste could

drive away the buffaloes of Thakurs out of his field. When

deceased objected to it, it is alleged that the appellant with an

intention to kill the deceased, attacked him with an axe due to

which, deceased Veer Singh fell down. Thereafter, appellant-

accused allegedly gave two-three blows on the head of the

deceased with axe. On seeing the complainant (PW-1), his

brother (PW-2) and Badam Singh (PW-7) coming, appellant-

accused ran away from the spot. Deceased died on the spot

itself. Rajaram (PW-1) lodged the Dehati Nalishi/complaint (Ex.-

2 P1) based on which, FIR in Crime Case No.306/2005 was

registered against the appellant-accused under Section 302

IPC and under Section 3(2)(v) of the Scheduled Castes and

Scheduled Tribes (Prevention of Atrocities) Act. Dr. Pradeep

Sharma (PW-5) had conducted the post-mortem on the dead

body of deceased Veer Singh and found six injuries on his

head. PW-5 issued post-mortem certificate (Ex.P10) opining

that the cause of death was shock due to excessive external

and internal bleeding. Upon completion of investigation, charge

sheet was filed against the appellant-accused under Section

302 IPC and under Section 3(2)(v) of the Scheduled Castes

and Scheduled Tribes (Prevention of Atrocities) Act.

4. To prove the guilt of the accused, the prosecution

examined three eye witnesses viz. Rajaram (PW-1), Raghuveer

(PW-2) and Badam Singh (PW-7) who have spoken about the

occurrence and R.C. Bhoj, Police Incharge (PW-4), who has

recorded Dehati Nalishi (Ex.-P1), Dr. Pradeep Sharma (PW-5)

who has conducted post-mortem on the dead body of

deceased and other witnesses. Upon consideration of

evidence, the trial court held that the prosecution has proved

3 the guilt of the accused beyond reasonable doubt and vide

judgment dated 11.09.2006 convicted the appellant-accused

under Section 302 IPC and sentenced him to undergo life

imprisonment. Since the deceased was a Scheduled Caste, the

appellant-accused was also convicted under Section 3(2)(v) of

the Scheduled Castes and Scheduled Tribes (Prevention of

Atrocities) Act and sentenced to undergo life imprisonment

along with a fine of Rs.1,000/-. Being aggrieved, the appellant

has preferred appeal before the High Court.

5. The High Court affirmed the conviction of the appellant-

accused by holding that mere delay in recording the statement

of the witnesses under Section 161 Cr.P.C. is not fatal to the

case of prosecution. After referring to the evidence of

Mohinder Kanwar (PW-9)-Investigating Officer, the High Court

held that there was a communal tension in the locality and

therefore, PW-9 could not immediately record the statement

of the witnesses and therefore, delay in recording the

statement of witnesses would not affect the case of

prosecution. The High Court also held that the delay in sending

the FIR (Ex.-P9) to the Magistrate cannot be said to be fatal to

4 the case of prosecution. Insofar as the conviction under

Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes

(Prevention of Atrocities) Act, the High Court held that the

deceased Veer Singh belonged to Khangar Caste which is a

Scheduled Caste and when deceased objected to the act of the

appellant-accused of leaving his cattle in the field of deceased,

appellant got furious and scolded that as the deceased belongs

to Khangar Caste, how he could dare to drive the cattle of a

person belonging to Thakur Caste and hence, the prosecution

has proved the commission of the offence under Section 3(2)(v)

of the Scheduled Castes and Scheduled Tribes (Prevention of

Atrocities) Act and the sentence of imprisonment imposed upon

the appellant does not call for any interference.

6. We have heard Dr. J.P. Dhanda, learned counsel

appearing on behalf of the appellant and Ms. Pragati Neekhra,

learned counsel appearing for the State of Madhya Pradesh

and perused the impugned judgment, evidence and other

materials on record. The point falling for consideration is

whether the conviction of the appellant-accused under Section

302 IPC and under Section 3(2)(v) of the Scheduled Castes

5 and Scheduled Tribes (Prevention of Atrocities) Act is

sustainable?

7. Rajaram (PW-1) and Raghuveer Singh (PW-2) are the

real brothers of deceased Veer Singh. Badam Singh (PW-7) is

the real brother of the wife of deceased and is not resident of

the village where occurrence took place. PWs 1, 2 and 7 who

are eye-witnesses have consistently stated that on the date of

occurrence-14.08.2005, when deceased Veer Singh was

cultivating the field and they were grazing their buffaloes at

nearby place, at that time, appellant-accused Khuman Singh

came there along with his buffaloes and started grazing his

buffaloes at the farmyard of the field of deceased Veer Singh.

When deceased drove the buffaloes out of his field, the

appellant is alleged to have abused the deceased calling him

by his caste “Khangar” as to how he can force away the

buffaloes of “Thakurs”. In a wordy altercation, the appellant-

Khuman Singh hit the deceased on his head with an axe due to

which, deceased fell down and later succumbed to injuries. On

considering the evidence of PWs 1, 2 and 7 who have

consistently spoken about the occurrence, the prosecution has

6 proved that the appellant caused the injuries on the head of the

deceased with an axe.

8. The question falling for consideration is whether the

appellant-accused intentionally caused the death of deceased

Veer Singh? The entire incident occurred when the appellant

had taken his buffaloes for grazing in the field of deceased for

which the deceased objected and drove all the buffaloes out of

his field. It is in these circumstances, the appellant became

furious and abused the deceased and caused injuries on his

head in a sudden fight with axe. There was no premeditation for

the occurrence and because of the grazing of the cattle, in a

sudden fight, the occurrence had taken place.

9. The question to be considered is whether the act of the

appellant-accused would fall under Exception 4 to Section 300

IPC? Exception 4 to Section 300 IPC can be invoked if death

is caused:- (a) without premeditation; (b) in a sudden fight; (c)

without the offender having taken undue advantage or acted in

a cruel or unusual manner; and (d) the fight must have been

with the person killed. In the present case, the appellant-

accused and the deceased exchanged wordy abuses on which,

7 appellant gave the deceased blows on his head causing six

head injuries. Where the occurrence took place suddenly and

there was no premeditation on the part of the accused, it falls

under Exception 4 to Section 300 IPC.

10. As discussed earlier, the entire incident was in a sudden

fight in which the appellant-accused caused head injuries on

the deceased with an axe. There was no prior deliberation or

determination to fight. The sudden quarrel arose between the

parties due to trivial issue of grazing the buffaloes of the

appellant for which, the deceased raised objection. In a sudden

fight, the appellant had inflicted blows on the head of the

deceased with an axe which caused six head injuries. Though

the weapon used by the appellant was axe and the injuries

were inflicted on the vital part of the body viz. head, knowledge

is attributable to the appellant-accused that the injuries are

likely to cause death. Considering the fact that the occurrence

was in a sudden fight, in our view, the occurrence would fall

under Exception 4 to Section 300 IPC. The conviction of the

appellant-accused under Section 302 IPC is therefore to be

modified as conviction under Section 304 Part II IPC.

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11. The next question falling for consideration is whether the

conviction under Section 3(2)(v) of the Scheduled Castes and

Scheduled Tribes (Prevention of Atrocities) Act can be

sustained? Deceased belongs to “Khangar” Caste and in a

wordy altercation, appellant-accused is said to have called the

deceased by his caste name “Khangar” and attacked him with

an axe. Calling of the deceased by his Caste name is

admittedly in the field when there was a sudden quarrel

regarding grazing of the buffaloes.

12. From the evidence and other materials on record, there is

nothing to suggest that the offence was committed by the

appellant only because the deceased belonged to a Scheduled

Caste. Both the trial court and the High Court recorded the

finding that the appellant-accused scolded the deceased Veer

Singh that he belongs to “Khangar” Caste and how he could

drive away the cattle of the person belonging to “Thakur” Caste

and therefore, the appellant-accused has committed the

offence under Section 3(2)(v) of the Scheduled Castes and

Scheduled Tribes (Prevention of Atrocities) Act. Section 3 of the

said Act deals with the punishments for offences of atrocities

9 committed under the Scheduled Castes and the Scheduled

Tribes (Prevention of Atrocities) Act, 1989. Section 3(2)(v) of

the Act reads as under:-

“Section 3 – Punishments for offences of atrocities – (1) ……… (2) Whoever, not being a member of a Scheduled Caste or a Schedule Tribe, -

…….

(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 knowing 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”.

The object of Section 3(2)(v) of the Act is to provide for

enhanced punishment with regard to the offences under the

Indian Penal Code punishable with imprisonment for a term of

ten years or more against a person or property knowing that the

victim is a member of a Scheduled Caste or a Scheduled Tribe.

13. In Dinesh alias Buddha v. State of Rajasthan (2006) 3

SCC 771, the Supreme Court held as under:-

“15. Sine qua non for application of Section 3(2)(v) is that an offence must have been committed against a person on the ground that such person is a member of Scheduled Castes and Scheduled Tribes. In the instant case no evidence has been led to establish this requirement. It is not case of the prosecution

10 that the rape was committed on the victim since she was a member of Scheduled Caste. In the absence of evidence to that effect, Section 3(2)(v) of the Atrocities Act been applicable then by operation of law, the sentence would have been imprisonment for life and fine.

As held by the Supreme Court, the offence must be such so as

to attract the offence under Section 3(2)(v) of the Act. The

offence must have been committed against the person on the

ground that such person is a member of Scheduled Caste and

Scheduled Tribe. In the present case, the fact that the

deceased was belonging to “Khangar”-Scheduled Caste is not

disputed. There is no evidence to show that the offence was

committed only on the ground that the victim was a member of

the Scheduled Caste and therefore, the conviction of the

appellant-accused under Section 3(2)(v) of the Scheduled

Castes and Scheduled Tribes (Prevention of Atrocities) Act is

not sustainable.

14. Insofar as the conviction under Section 302 IPC is

concerned, as discussed earlier, the conviction of the appellant

under Section 302 IPC is modified as conviction under Section

304 Part II IPC. The appellant-accused has been serving the

sentence in jail for more than twelve years. As per the jail

11 certificate issued by the Superintendent, Central Jail, Gwalior,

the appellant has served the actual sentence in jail for more

than twelve years (as on 04.07.2018) and as on date, he has

served the sentence of more than thirteen years. Considering

the facts and circumstances of the case, for the conviction

under Section 304 Part II IPC, the appellant is sentenced to

undergo imprisonment to the period already undergone.

15. In the result, the conviction of the appellant under Section

3(2)(v) of the Scheduled Castes and Scheduled Tribes

(Prevention of Atrocities) Act is set aside and he is acquitted of

the said charge. The conviction of the appellant under Section

302 IPC is modified as conviction under Section 304 Part II IPC

and is sentenced to undergo imprisonment to the period

already undergone. Accordingly, the appeal is partly allowed

and the appellant is ordered to be released forthwith, if his

presence is not required in any other case.

………………………….J. [R. BANUMATHI]

………………………….J. [A.S. BOPANNA] New Delhi;

August 27, 2019.

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