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Madhya Pradesh High Court · body

2011 DIGILAW 1333 (MP)

Antu Kachi v. State of M. P.

2011-11-24

S.C.SINHO

body2011
JUDGMENT 1. Appellant has filed this appeal aggrieved by the judgment and conviction passed by Special Judge, Damoh in S.T.No. 47/98 vide impugned judgment dated 11.12.98 whereby being convicted u/s. 307 of IPC and 3 (2) (v) of SC/St (Prevention of Atrocities) Act, he has been sentenced to undergo RI for 3 years on each count. 2. Prosecution case in brief is that on 11.1.98 at about 6 p.m. complainant Santosh was coming back from village Deogaon and his mother Khilona Bai was following him. On that occasion the cattle belonging to one Harisingh came to the platform of complainant and he leathered the cattle insider. When the complainant came out after leathering the cattle, the accused/appellant gave a blow to him with knife which caused injuries and bleeding. It is allegd that at the same time, appellant gave second blow to complainant with knife on his waist. Mother Khilona Bai and one witness Pappu intervened between them. It is alleged that prior to incident appellant and complainant with his mother used to work together in one Pritam Singh's house. Appellant gave abused to Pritam Singh and when complainant informed Pritam Singh about accused's abuses, he turned the accused out of his house and discontinued the employment of accused about 3 or 4 days prior to incident therefore, out of vengeance appellant caused injuries to complainant. Khilona Bai lodged the FIR Ex. P-12 in police station Hata. He was sent for medical examination. PW-6 Dr. P.D. Kargaiya examined him and gave medical report Ex. P-ll. Completing the investigation; charge sheet was filed. 3. Appellant abjured the guilt. However, the Court below relying upon the statements of PW-7 Santosh duly supported by PW-8 Khilona Bai, PW-3 Pappu, PW-4 Pandey @ Raghuveer, PW-9 Monu Singh, PW-6 Dr. P.O. Kargaiya, PW-l Dr. A.K. Tiwari. PW-2 Dr. O.P. Dubey held the appellant guilty u/s 307 of IPC and 3 (2) (v) of-SC/ST (Prevention of Atrocities) Act and sentenced for the period said above. 4. Shri Mukhtar Ahmad. learned counsel for appellant has submitted that there was free fight between both the parties, therefore. appellant has wrongly been convicted u/s. 307 of IPC and 3 (2) (v) of SC/ST (Prevention of Atrocities) Act. 5. 4. Shri Mukhtar Ahmad. learned counsel for appellant has submitted that there was free fight between both the parties, therefore. appellant has wrongly been convicted u/s. 307 of IPC and 3 (2) (v) of SC/ST (Prevention of Atrocities) Act. 5. Complainant/injured PW -7 Santosh has stated that on the date of incident i.e. 11.1.98 at about 6.00 p.m. suddenly appellant came armed with knife and assaulted him on chest and again assaulted him on the backbone. Just after the incident, he was taken to PHC, Hata where PW-6 Dr. P.O. Kargaiya examined him and found the following injuries as per Ex. P-ll: (i) Incised wound 3 cm x 1/2 cm x 1/2 cm stabbed over left middle of epigastric region. (ii) Incised wound 2 cm x 1/2 cm x 1/2 cm stabbed over lumber region Both the injuries are caused by hard and sharp edged object. Advised for X-ray and surgical report. For the x-ray report injured was sent to District Hospital Damoh. PW-2 Dr. A.K. Dubey has taken the x-ray of chest and found hydroneumthorax and lung collapse as per Ex. P-4. However, no bone was fractured. 6. Shri Mukhtar Ahmad, learned counsel has submitted that there was no intention of appellant to cause death of complainant. On bare perusal of statement of injured Santosh Kumar, it is clear that appellant has assaulted him with knife on his stomach and again second blow of knife was made on waste. Aforesaid fact is further supported by PW-3 Pappu. PW-4 Pandey @ Raghuveer duly corroborated by medical report Ex. P-ll. Further no bone injury was found as per Ex. P-14 x-ray report. 7. Apart from injuries on bare perusal of statement of complainant PW-7 Santosh it is clear that appellant has caused two injuries on his chest and stomach. Nature of injury is not important. The Court below has rightly convicted the appellant u/s. 307 of IPC. As far as section 3 (2) (v) of SC/ST (Prevention of Atrocities) Act is concerned it will be proper to reproduced para 9 of the judgment Masumsha Hasanasha Musalman v. State of Maharashtra, AIR 2000 SC 1876 as under : "9. Nature of injury is not important. The Court below has rightly convicted the appellant u/s. 307 of IPC. As far as section 3 (2) (v) of SC/ST (Prevention of Atrocities) Act is concerned it will be proper to reproduced para 9 of the judgment Masumsha Hasanasha Musalman v. State of Maharashtra, AIR 2000 SC 1876 as under : "9. 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 provisions by the trial Court as well as by the High Court ought to be set aside." Thus, the Court below has committed a mistake while convicting the appellant u/s. 3 (2) (v) of SC/ST (Prevention of Atrocities) Act. 8. Shri Mukhtar Ahmad, learned counsel for appellant has submitted that appellant is aged about 19 years and first offender. Further, looking to the background of the incident that earlier both were working in the same house of Pritam Singh and appellant was removed from the service on the complaint of complainant, one more chance be given. 8. Shri Mukhtar Ahmad, learned counsel for appellant has submitted that appellant is aged about 19 years and first offender. Further, looking to the background of the incident that earlier both were working in the same house of Pritam Singh and appellant was removed from the service on the complaint of complainant, one more chance be given. Having regard to the fact that appellant Antu Kachi being young boy of 19 years, even then because section 326 of lPC is punishable with imprisonment for life, Probation of Offenders Act is not applicable unto though he is below 20 years. 9. Consequently, the appeal is partly allowed. Maintaining the conviction and sentence u/s. 307 of IPC appellant is acquitted from the offence u/s. 3 (2) (v) of SC/ST (Prevention of Atrocities) Act. Appellant is on bail. His bail bonds stand cancelled. He is directed to surrender before the Courts below to serve out the ramaining period of sentence regarding offence u/s. 307 IPC. Copy of this order be sent to the trial Court for information and compliance. . Mukhtar Ahmad for appellant; R.P. Tiwari, Government Advocate for respondent/State.