Masumsha
Hasanasha Musalman Vs. State of Maharashtra [2000] INSC 81 (24 February 2000)
S.R.Babu,
S.S.M.Quadri
RAJENDRA
BABU, J. :
The
appellant on being charged by the Sessions Judge, Buldhana of having caused
grievous injuries to one Saoji Gamaji Jadhav (the deceased) with Jambiya
(knife) intentionally and knowingly that they would result in his death and
thus committed an offence punishable under Section 302 IPC. He was also charged
under Section 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention
of Atrocities) Act, 1989 [hereinafter referred to as the Act]. The appellant
stood convicted of the offence punishable under Section 304 Part II, IPC and
sentenced to suffer rigorous imprisonment for five years. He was further
convicted of the offence punishable under Section 3(2)(v) of the Act and
sentenced to suffer rigorous imprisonment for one year and to pay fine of
Rs.1,000/- in default to suffer rigorous imprisonment for 3 months. Both the
State and the appellant filed separate appeals to the High Court. The High
Court, on re-examination of the evidence on record, allowed the appeal filed by
the State and convicted the appellant for the offence punishable under Section
302 IPC and sentenced him to suffer rigorous imprisonment for life and to pay a
fine of Rs.200/- in default to suffer further rigorous imprisonment for one
month while maintaining the conviction of the appellant for the offence
punishable under Section 3(2)(v) of the Act. Both the sentences are stated to
run concurrently. The appeal filed by the appellant stood dismissed. Hence this
appeal against the common order made by the High Court in the said two appeals.
The prosecution case as unfolded by the witnesses is that between 7 and 8 p.m.
on 25.8.92 Saoji Gamaji Jadhav who belongs to the scheduled caste was done away
to death. It is stated that the appellant and the deceased are residents of Nandra
Koli village situate 7 kilometres from Buldana.
On the
fateful day the deceased returned to the house at dusk and after some time 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, the deceased left his home,
the appellant came to the house of the deceased and enquired from Deubai
{PW-4}, wife of deceased Saoji Gamaji Jadhav. She found that he was having a Jambiya.
On coming to know from her that her husband had gone out of the house, the
appellant started running through the lane. As the appellant was seen by Deubai
with the Jambiya, she got suspicious and followed him and near the hospital of Dr.Kalwaghe, she saw the appellant stabbing the deceased. She stated
that the appellant after giving two or three blows with the Jambiya and
deceased fell on the ground ran away. When he left the place, she found that
the deceased was having bleeding injuries and she tried to tie up a cloth
around the wound but in the meanwhile he succumbed to the injuries. Thereafter
she with the help of the police patil went to the Police Station, Buldana and
lodged a complaint when the PSI, Shri Oval visited the spot and after recording
her complaint and registering a case conducted inquest. When the appellant was
in the custody, he produced Jambiya. After completing the investigation a
charge-sheet was laid for the offences stated earlier before the Jurisdictional
Magistrate who committed the same to the Court of Sessions. On charges being
framed, the appellant pleaded not guilty to the charge and denied having caused
any injuries to the deceased or committed murder. In the course of evidence,
the Defence suggested to the prosecution that the deceased was under the
influence of alcohol and he himself had a dagger; that a scuffle took place
when he attacked the appellant, as a result of which he died out of injuries
caused by himself; that the appellant had not caused any injury and that he
tried to save himself. There was no dispute that the deceased met with
homicidal death and this fact is amply established by the medical evidence on
record. There were as many as 10 injuries on him as disclosed by Dr. Umesh Nawade
{PW-3}, who conducted the postmortem examination. He found that injuries Nos. 4
to 10 were only skin deep or abrasions whereas injuries nos.
1, 2
and 3 were of serious nature. They are as follows :
1.
Incised wound, left infra-clavicular region in middle of size 6cm x 2.1/2 cm x
4.1/2 cm. Edges gaping blood oozing and blood clots seen. 2. Incised gaping
wound, left infra-axillary region in 4th ICS 1 cm x 1 cm skin deep, blood clots
seen. 3. Incised gaping wound, left posterior axillary line 4cm x 1cm x 2cm
deep. Reddish black colour. 4. Abrasion left elbow size 3cm x 2cm. 5. C.L.W.
over
left ulnear head 1cm x 1cm skin deep. 6. Abrasion just below injury No. 5, 1cm
x 1cm. 7. Abrasion left posterior ileo crest 1cm x 1cm. 8. Abrasion left angle
of lower lip 1cm x 1cm. 9. Abrasion right orbit out region 1cm x 1cm. 10. Abrasion
right forehead 1cm x 1cm.
He
also stated that there is a fracture of the second rib on the left side in the
middle, pleura incised 5cm x 1cm; that injury no. 1 was grievous injury and was
sufficient to cause death in the ordinary course of nature.
He
further stated that injury Nos. 2 and 3 could be caused by the same weapon and
he was definite that injury no. 1 could not be caused due to fall on curved and
pointed stone.
He,
however, admitted that injury nos. 2 and 3 were skin deep not affecting any
bone and could be caused in the course of a scuffle and injury no.1 could not
have been caused on the person holding dagger and sitting on the chest of the
victim who caught hold the hands with dagger.
The
trial court accepted the evidence of Deubai {PW-4} and Manoj {PW-5}. Manoj
corroborated the evidence tendered by Deubai to the extent of having seen the
appellant having a Jambiya in his hand when Deubai (PW4) was following him and
that he found something very suspicious so he followed both of them. That is
how he witnessed the scuffle and the injuries caused by the appellant to the
deceased. Deubai admitted in the course of her cross- examination that scuffle
took place between the appellant and her husband and her husband fell on the
ground; that for considerable time, the scuffle went on; that while on some
occasions the appellant was on the ground, on some other occasions her husband
was on the ground; that the appellant and the deceased were overpowering each
other. PW-5 also stated that he saw that in front of the hospital of Dr. Kalwaghe the deceased coming and the appellant was following him
with dagger and gave blows of dagger on the person of the deceased. The trial
court found from these circumstances that the appellant had no intention to
kill the deceased and that after giving one blow, other injuries had been
caused due to scuffle. This was amply supported by the evidence of the Medical
Officer that injuries Nos. 2 and 4 to 10 could be caused in the scuffle, or
injuries other than injury no.
1
could be caused due to obstruction by the deceased.
Therefore,
it could not be inferred that the appellant intended to inflict more injuries
than injury no.1. If this aspect is borne in mind, it would be clear that the
appellant had given only one blow with the Jambiya resulting in his death and,
therefore, the trial court found that it would not be proper to convict the
appellant under Section 302 IPC. The argument relating to private defence was
straightaway rejected for there were no injuries on the person of the appellant
and the attack had been made by the appellant himself. The trial court
discarded the evidence relating to discovery of the weapon and jacket for the
reasons set forth in the order. The trial court also convicted the appellant
for the offence arising under Section 3(2)(v) of the Act only on the basis that
there was no controversy that the victim belonged to the scheduled caste and
convicted him. On appeal by the State, the High Court is of the view that the
present case is not a case of single injury and there was direct evidence of
PWs-4 and 5 in respect of blows given by the appellant to the deceased and the
mere opinion of the doctor that the injuries Nos. 2 to 10 could be caused
during scuffle would not rule out the possibility of causing incised injuries.
On that basis, the High Court was of the opinion that there was an intention to
kill the deceased and did not agree with the view of the trial court that
though the appellant had some grudge against the deceased, he did not intend to
kill him but inflicted only a single injury and the other injuries were caused
as a result of scuffle that followed.
The
findings of the High Court are under challenge before us. The learned counsel
for the appellant contended that the view taken by the trial court is justified
and should be accepted and there was no basis for the High Court to rule out
the same. Further, he pleaded that no case was established for an offence under
Section 3(2)(v) of the Act.
The
learned counsel for the State, however, supported the view taken by the High
Court.
It is
in evidence of Deubai (PW-4) that when she followed the appellant, she saw that
the appellant went from behind of her husband and stabbed him with dagger at
left side shoulder and thereafter gave blows of dagger to the deceased. If she
had been following the appellant, she could not have seen him giving a blow to
the deceased from the back. Only when the scuffle started taking place,
injuries could have been inflicted and she could have seen those injuries. In
the circumstances, it is reasonable to infer that only one serious injury was
caused by the appellant to the deceased which is injury No. 1 while all other
injuries, as opined by the doctor, could have been caused during the scuffle.
This appreciation of evidence by the trial court stands to reason. The High
Court brushed aside the medical evidence to draw an inference that there was an
intention on the part of the appellant to cause all the injuries. The evidence
of the Doctor means that injury Nos. 4 to 10, which are mere abrasions or skin
deep, could not have been caused by him but these abrasions could have been
caused by falling on the ground and coming in contact with a rough surface. The
probability that while injury No.1 could have been inflicted by the appellant,
injury Nos.
2 and
3 could have been caused in the course of the scuffle cannot be ruled out. In
this view of the matter, we think that the view taken by the trial court is
preferable to the view taken by the High Court as there is a sufficient cogency
in the reasoning adopted by the trial court. The High Court does not appear to
have appreciated this aspect of the matter at all.
Section
3(2)(v) of the Act provides that whoever, not being a member of a Scheduled
Caste or a Scheduled Tribe, commits any offence under the Indian Penal Code
punishable with imprisonment for a term of ten years or more against a person
or property on the ground that such person is a member of a Scheduled Caste or
a Scheduled Tribe or such property belongs to such member, shall be punishable
with imprisonment for life and with fine. In the present case, there is no
evidence at all to the effect that the appellant committed the offence alleged
against him on the ground that the deceased is a member of a Scheduled Caste or
a Scheduled Tribe. To attract the provisions of Section 3(2)(v) of the Act, the
sine qua non is that the victim should be a person who belongs to a Scheduled Caste
or a Scheduled Tribe and that the offence under the Indian Penal Code is
committed against him on the basis that such a person belongs to a Scheduled
Caste or a Scheduled Tribe. In the absence of such ingredients, no offence
under Section 3(2)(v) of the Act arises. In that view of the matter, we think,
both the trial court and the High Court missed the essence of this aspect. In
these circumstances, the conviction under the aforesaid provision by the trial
court as well as by the High Court ought to be set aside.
In the
result, we reverse the judgment of the High Court in so far as this aspect of
the matter is concerned and acquit the appellant of the said charge while we
set aside the conviction under Section 302 IPC and restore that of the trial
court imposing a punishment of five years for an offence under Section 304,
Part II, IPC. It is brought to our notice that the appellant has already been
in custody for more than five years now. Therefore he should be set at liberty
forthwith. The appeal is allowed accordingly.
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