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Rajasthan High Court · body

2013 DIGILAW 988 (RAJ)

Sudha Ram v. State of Raj.

2013-05-13

AJAY RASTOGI, BANWARI LAL SHARMA

body2013
Hon'ble SHARMA, J.—The judgment of conviction and order of sentence dated 3.9.2004, passed by the learned Special Judge, SC/ST (Prevention of Atrocities) Act Cases, Churu (hereinafter referred to as `the learned trial court') in Special Sessions Case No. 50/2003, title as State of Rajasthan vs. Sadhu Ram, is in challenge in this appeal. By the impugned judgment and order aforesaid, the learned trial Court convicted the appellant under Section 302 IPC read with Section 3(2) (5) of the SC/ST (Prevention of Atrocities) Act, 1989 (hereinafter referred to as `the Act of 1989') and sentenced him to suffer imprisonment for life and pay fine of Rs. 1,000/-, in default of payment of fine, suffer another period of rigorous imprisonment for one year. Being aggrieved by the said conviction and sentence, the convict, as appellant, has preferred this appeal before this Court. The case of the prosecution as unfolded at the trial, in brief, may be stated as follows:- 2. The present case involves the killing of Shri Mansha Ram (hereinafter referred to as `deceased') by the appellant-convict. On 23.9.2003, at about 9.30 p.m., when the deceased was returning from his agricultural field to his home and reached near the shop of Durga Singh, accused Sudha Ram S/o Shri Shobha Ram Jat came from behind armed with an axe and caught hold the throat of deceased and throw him down in the street. Thereafter, with intention to kill him, he inflicted injuries on the neck and head of the deceased from sharpen side of the axe. On hearing, ^^ekjs ekjs**] Durga Singh, Shera Ram and Tarachand rushed to rescue. On seeing them, Sudharam, accused, ran away towards his house. Tarachand narrated the story to the complainant Prabhu Ram at his house. On hearing from Tarachand about the incident, complainant Prabhu Ram, the brother of deceased, reached on the spot with Tarachand and saw that Mansharam had died. There were injuries on his head and neck and blood was oozing. A written report of the occurrence, Ex. P/1 was submitted by Prabhu Ram (PW.1) at 11.30 p.m. On the same day at P.S. Sardarshahar (Churu). The police, after receipt of the report, registered a case being FIR No. 274/2003, under Section 302 IPC and Section 3(2)(5) of the Act of 1989 and launched investigation into the matter. 3. A written report of the occurrence, Ex. P/1 was submitted by Prabhu Ram (PW.1) at 11.30 p.m. On the same day at P.S. Sardarshahar (Churu). The police, after receipt of the report, registered a case being FIR No. 274/2003, under Section 302 IPC and Section 3(2)(5) of the Act of 1989 and launched investigation into the matter. 3. During investigation, the police prepared inquest report Ex.P/5, forwarded the dead body of the deceased for postmortem examination, arrested and accused vide arrest memo Ex.P.14, seized the incriminating weapon (axe) vide seizure memo Ex. P/10, prepared the site plan Ex.P/3, site inspection memo Ex.P/3A, dead body description memo Ex.P/4, seized the blood stained soil vide Ex.P/6, seized controlled soil vide Ex. P/7, seized a blood stained torch which was lying near the dead body vide Ex.P/8, seized blood stained garments of deceased Mansha Ram vide Ex.P/9, prepared a rough site plan of place of recovery of axe Ex. P/11 and site inspection memo of place of recovery Ex.P/11 and procured postmortem report Ex.P/12. To prove the enmity between the families of accused and deceased, previous FIRs Ex.P/15 and Ex.P.16, lodged by Prabhu Ram and Kalu Ram S/o Prabhu Ram, were taken on record and recorded the statements of witnesses. At the close of the investigation, the police submitted charge-sheet against the accused Sudha Ram for the offence under Section 302 IPC and Section 3(2)(5) of the Act of 1989 in the court of the learned Judicial Magistrate, Sardarshahar. 4. The offence under Section 302 IPC and 3(2)(5) of the Act of 1989, being exclusively triable by the learned Special Judge, SC/ST (Prevention of Atrocities) Act Cases, Churu (District & Sessions Judge, Churu), the learned Judicial Magistrate,Sardarshahar, after complying the provisions envisaged in Section 207 Cr.P.C.,committed the case to the court of learned Special Judge, SC/ST (Prevention of Atrocities Act Cases, Churu. 5. The learned trial court after hearing the parties, framed charges for the offence under Section 302 IPC and Section 3(2)(5) of the Act of 1989. 6. In order to prove its case, the prosecution examined as many as 11 witnesses, including the medical officer Dr. J.R. Vishwakarma (PW.6) who conduced the autopsy of the dead body and the Investigating Police officer Sunil Vishnoi (PW.7), C.O., P.S. Churu. 7. 6. In order to prove its case, the prosecution examined as many as 11 witnesses, including the medical officer Dr. J.R. Vishwakarma (PW.6) who conduced the autopsy of the dead body and the Investigating Police officer Sunil Vishnoi (PW.7), C.O., P.S. Churu. 7. At the conclusion of the evidence for the prosecution, the accused person was examined twice by the learned trial court, under Section 313 Cr.P.C. The accused denied the allegations brought against him and failed to adduce any evidence even after availing the opportunity and stated that deceased Munshi Ram came to him at 8.00 p.m. in the drunken state and inflicted on him by an axe. The axe was snatched by him and thereafter he inflicted two injuries by the same axe in his self defence. 8. After hearing the learned Special Prosecutor and learned counsel for the accused and considering the evidence on record, the learned trial court found the appellant guilty of the offence under Section 302 IPC read with Section 3(2)(5) of the Act of 1989 and accordingly convicted and sentenced the accused, as indicated above. 9. Being aggrieved, the convict, who has been suffering the sentence, as appellant, has preferred this appeal from jail. 10. The learned Amicus Curiae, on behalf of the accused-appellant, has submitted that the incident took place at 9.30 p.m. while the FIR was lodged at 11.30 p.m., i.e. after two hours of the incident and this delay has not been explained by the prosecution. He further submitted that the eye-witnesses are the chance witnesses and their presence at the time of occurrence is doubtful. As such, there statements cannot be believed. He further submitted that the place of incident from the shop of Durga Singh (PW.10) is about 25 ft. away and in the month of September, at 9.30 p.m., it was not possible to see and identify a person standing 25 ft. away in the dark. On this count too, the statements of the eye-witnesses cannot be relied upon. It was also submitted that the said weapon of offence was having the seal of Bhanwarlal, SHO. As such, it was seized by said Bhanwarlal but he was not examined. Further, the articles were deposited in the malkhana by Bhola Ram, ASI, who has also not been examined during trial. As such, link evidence is missing. It was also submitted that the said weapon of offence was having the seal of Bhanwarlal, SHO. As such, it was seized by said Bhanwarlal but he was not examined. Further, the articles were deposited in the malkhana by Bhola Ram, ASI, who has also not been examined during trial. As such, link evidence is missing. He further submitted that the prosecution has failed to prove the case beyond reasonable doubts and the learned trial court committed error by convicting the appellant without sufficient evidence. It was submitted that there is no iota of evidence, which proves that the offence was committed on a member of SC community because of the fact that he was a member of such community. In absence of it, the accused cannot be convicted for the offence under Section 3(2)(5) of the Act of 1989. It was also submitted that considering the circumstances, in which the alleged offence was committed, the same did not amount to murder, rather it was a culpable homicide not amounting to murder and as such, the appellant is entitled to the benefit under Section 304 IPC. 11. Refuting the said arguments, the learned Public Prosecutor, supporting the impugned conviction and sentence, has submitted that, there is sufficient evidence of intentionally causing the injuries with a sharp and heavy object on vital parts of the body of the deceased, who belongs to SC community and as such, the learned trial court committed no error by recording the conviction and sentence under Section 302 IPC read with Section 3(2)(5) of the Act of 1989. 12. In order to appreciate the arguments, advanced on behalf of the parties, we feel it appropriate to briefly scan the evidence on record. 13. Prabhu Ram (PW.1) stated that on the fateful day, while he was at his home, Tarachand S/o Licchu Ram came and told that his brother was murdered by the accused after inflicting injuries by an axe in-front-of shop of Durga Singh. On hearing this, he went on the spot with Tarachand, where Mansha Ram was lying in the street in-front-of the shop of Durga Singh. There were injuries on his neck and till then he was died. He further stated that when he reached on the spot, at that time, Durga Singh and Shera Ram were present at the shop of Durga Singh. There were injuries on his neck and till then he was died. He further stated that when he reached on the spot, at that time, Durga Singh and Shera Ram were present at the shop of Durga Singh. He also stated that there was enmity between Sudha Ram and his family prior to the incident and due to it, Mansha Ram was murdered. He further stated that he lodged the report Ex.P/1 regarding the incident at police station and police came on the spot and prepared rough site plan Ex. P/3, dead body inspection memo Ex.P/4, inquest report Ex.P/5 and further stated that he lodged a report against Shishpal, who is uncle of accused. 14. Tarachand (PW.2), Shera Ram (PW.4) and Durg Singh @ Durga Singh (PW.10) stated that on 23.9.2003, at about 9.30 p.m., when they were there at the shop of Durga Singh, Mansha Ram was coming from his agricultural field and was going to his house. When he reached at the shop of Durga Singh, Sudha Ram- accused, came from behind and inflicted injuries on Mansha Ram on his neck by an axe, which resulted into death of Mansha Ram. They further stated that the injuries were inflicted from the sharpen side of the axe and they witnessed the incident. They also stated that when they rushed for rescue, on seeing them, Sudha Ram ray away after taking the axe from the spot. Tarachand (PW.2) stated that after the incident, he went to the house of Prabhuram (brother of deceased) and informed him about the incident. Thereafter, Prabhu Ram came on the spot with him. It was also stated by Tarachand (PW.2) that report Ex.P/1 and FIR Ex.P/2 bear his signature. 15. Koda Ram (PW.3) stated that the police prepared rough site plan Ex.P/3, dead body inspection memo Ex.P/4, inquest report Ex.P/5 and seized controlled and blood stained soil from the place of occurred vide Ex.P/6 and Ex/P/7, recovered blood stained torch from the place of occurrence vide Ex.P/8 and the garments of deceased were seized vide memo Ex.P/9, which bears his signature. 16. Chunni Lal (PW.5) stated that police recovered an axe vide memo Ex.P/10 from the room situated in the house of accused Sudha Ram at the instance of accused. A rough site plan of place of recovery was also prepared as Ex.P/11. 17. 16. Chunni Lal (PW.5) stated that police recovered an axe vide memo Ex.P/10 from the room situated in the house of accused Sudha Ram at the instance of accused. A rough site plan of place of recovery was also prepared as Ex.P/11. 17. Ranveer Singh (PW.8), Contable stated that on 5.10.2003, Anop Singh, Malkhana Incharge, handed over him five sealed packets with a letter for depositing the same in FSL to which he deposited at FSL, Jodhpur on 6.10.2003 and received a receipt thereof as Ex. P/17. He proved his departure report recorded in rojnamcha as Ex. P/20 and his return report recorded in rojnamcha as Ex.P/21. 18. Sultan (PW.9), younger brother of deceased Mansha Ram, stated that dead body of Mansha Ram was lying in front of the shop of Durga Singh, having injuries below his ear, neck and other parts of body and blood was oozing. He further submitted that Durga Singh told him that Sudha Ram murdered Mansha Ram by inflicting injuries. He further stated that there was enmity between both the families. 19. Anop Singh (PW.11), Malkhana Incharge, stated that on 24.9.2003, CO, Churu, deposited four sealed packets, relating to FIR No. 274/2003, P.S. Sardarshahar, which were entered in the malkhana register at S.No. 401. He further stated that thereafter Bhanwarlal also deposited one sealed packet marked 'E', contained blood stained axe, which was also entered in malkhana register. He further stated that the articles were handed over to Ranveer Singh, Constable No. 369, for depositing in FSL, Jodhpur, who after depositing the same, handed over the receipt Ex. P/17, issued by the FSL, Jodhpur. 20. The Investigating Officer, Sunil Vishnoi, deposing as PW.7, stated that he, after receipt of file for investigation, reached on spot, prepared site plan Ex.P/3, site inspection memo Ex. P/3A, dead body inspection memo Ex.P/4, inquest report Ex. P/5, seized blood stained soil vide Ex. P/6, controlled soil vide Ex.P/7, blood stained torch lying near the dead body vide Ex.P/8, garments of deceased vide Ex.P/9 and weapon of offence, an axe, vide Ex.P/10. A site plan of place of recovery of axe was prepared as Ex.P/11 and information submitted by the accused was reduced in writing as Ex.P/13. The postmortem report was sought from the Medical Board. Photographs of the dead body and place of occurrence was got done. A site plan of place of recovery of axe was prepared as Ex.P/11 and information submitted by the accused was reduced in writing as Ex.P/13. The postmortem report was sought from the Medical Board. Photographs of the dead body and place of occurrence was got done. Statements of witnesses were recorded and previous reports regarding enmity between both the families, were taken on record as Ex.P/15 and Ex.P/16. The articles were sent for examination to the FSL. After close of evidence, charge-sheet was filed. 21. All the said witnesses, PW.2, PW.4 and PW.10, who witnessed the incident, were cross-examined by the defence and no contradictory evidence could brought out to demolish the prosecution version. The exhibited inquest report, i.e. Ex.P/5, indicates that the police, at the time of preparing dead body examination memo Ex.P/4, found two injuries like abrasions near the right ear and one injury on the right side of chin with clotted blood. Below left ear, cut wound from mandible to neck, on front side of the head, with blood clot. The hairs and garments were stained with blood and blood was spreaded on the soil. Ex.P/10, i.e. the seizure memo of axe, reveals that police had seized the axe and PW.2, PW.4 and PW.10 have specifically stated that an axe was used by the accused in assaulting the deceased. PW.2, PW.4 and PW.10 supported the prosecution version regarding the dead body inspection memo Ex.P/4 and the seizure of the axe. The evidence of PW.2, PW.4 and PW.10 that accused had assaulted the deceased twice with an axe, remained unimpeached and Sunil Vishnoi (PW.7) and Chunnilal (PW.5), supporting the seizure of axe, corroborated the evidence of PW.2, PW.4 and PW.10 on material point. The medical officer Dr. J.R. Vishwakarma (PW.6) performed the autopsy of the dead body of deceased and deposed that upon postmortem examination of the dead body, he found the following injuries:- "(1) Incised wound (spindal shaped) horizontal placed 6cm x 2cm x bony deep present - upper one third of (L) Lateral Surface of neck. Underlying muscles, nerves, artries, veins and part of (L) ramus of mandible cut and other layers of skin, antemortem sharp, dangerous to life. (2) Incised would (spined shaped horozontaly placed on vertex, 4cm x 2cm x bony deep blood infilterated in layers. Antemortem, sharp simple. Underlying muscles, nerves, artries, veins and part of (L) ramus of mandible cut and other layers of skin, antemortem sharp, dangerous to life. (2) Incised would (spined shaped horozontaly placed on vertex, 4cm x 2cm x bony deep blood infilterated in layers. Antemortem, sharp simple. It was opined that cause of death is shock due to excessive haemorrhage from neck vessels." He proved the postmortem report Ex. P/12. 22. From the said medical evidence, it is clear that the deceased sustained homicidal antemortem injuries caused by sharp cutting weapon like axe and the death was caused due to the injury No. 1 aforesaid. The inquest report ex.P/5 supports the evidence of PW.2, PW.4 and PW.10 regarding the location of the injuries. The injuries were found on the neck. PW.2, PW.4 and PW.10, who were the eye-witnesses, stated that the deceased was given blows on the neck. Hence, there is sufficient corroboration in the medical evidence and the ocular evidence. Thus, there is no dispute that the deceased did due to assault caused by the appellant-accused. 23. Dr. J.R. Vishwakarma (PW. 6) stated that the injuries were caused by sharp cutting weapon. PW.2, PW4 and PW.10 stated that the injuries were caused by an axe. They stated that the appellant, at the relevant time, came behind the deceased armed with and axe and he had inflicted blows with the said axe. The Investigating Officer also seized an axe. PW.7 Chunnilal. who was witness to the seizure of the axe, supported the prosecution version regarding seizure of the axe and the Investigating Officer also stated that in pursuance of information submitted by the accused, he recovered the axe from the conscious possession of the accused. 24. All the said non-official eye-witnesses i.e. PW.2, PW.4, PW.10 and complainant PW.1 stated that the deceased died instantaneously. In view of the above evidence, coupled with the medical evidence, it has been clearly established that the injuries sustained by the deceased, at the hands of the appellant, was the cause of death. 25. The recovered axe, blood stained soil and blood stained garments of the deceased and blood stained torch were sent for ascertaining the blood group to the FSL, Jodhpur. Vide FSL Report Ex.P/18, the garments of deceased and axe were found to be stained with `A' Group human blood. 25. The recovered axe, blood stained soil and blood stained garments of the deceased and blood stained torch were sent for ascertaining the blood group to the FSL, Jodhpur. Vide FSL Report Ex.P/18, the garments of deceased and axe were found to be stained with `A' Group human blood. As such, the blood group of deceased, which was found on the garments, the same was found on the axe, which also corroborates the prosecution version. 26. So far as the argument of learned Amicus Curiae regarding delay in lodging of FIR is concerned, the incident took place at 9.30 p.m. and as per the FIR Ex.P/2, it was lodged at 11.30 p.m. The distance of place of occurrence from the police station, as shown in Ex. P/2, is 15 km. and the place of incident is different from the place of residence of deceased. As per Prabhu Ram (PW.1), he came to know about the incident from Tarachand (PW.2) and as per Tarachand, both went to police station and lodged the report. As such, the FIR was lodged promptly without any delay. 27. So far as seeing the accused while inflicting injuries is concerned, all the eye-witnesses PW.2, PW.4 and PW.10 stated in their statements that the shop of Durga Singh (PW.10) was open and an electric bulb was lightening outside the shop and as per site plan Ex.P/3, the incident took place on the point marked `X', which is just in-front-of the shop of Durga Singh and all the witnesses stated that they saw the incident from the shop of Durga Singh. It is true that the incident took place at 9.30 pm. in the night but when the bulb was lightening outside the shop of Durga Singh, then in the light of electric bulb, it is not impossible to see the incident, which was occurred just 10-15 ft. away from the shop of Durga Singh. Further, the accused, deceased and the eye-witnesses belong to same place and know each other. In such circumstances, it is not difficult to see the incident and identify the accused and deceased from such a short distance in the light of electric bulb. As such, this argument is of no avail. 28. away from the shop of Durga Singh. Further, the accused, deceased and the eye-witnesses belong to same place and know each other. In such circumstances, it is not difficult to see the incident and identify the accused and deceased from such a short distance in the light of electric bulb. As such, this argument is of no avail. 28. So far as non-examination of Bhola Ram, ASI is concerned, suffice to say that as per Ex.P/22A (copy of malkhana register), the articles were seized by C.O., Churu and were sent through Bhola Ram in sealed condition. Anop Singh (PW.11), malkhana incharge, clearly stated that the articles were deposited in the malkhana in sealed condition. As such, non-examination of Bhola Ram, ASI cannot effect the prosecution case. Further, what prejudice has been caused by non-examination of Bhola Ram, ASI, has also not been disclosed, in absence whereof, this argument is of no avail. Similarly, so far as non-examination of Bhanwarlal is concerned, it is true that the articles were sealed by the seal of Bhanwarlal Sisodia but PW.7 clearly stated that the articles were seized and sealed by him. As such, mere using the seal of SHO Bhanwarlal and non-examination of Bhanwarlal, SHO, is not fatal for prosecution and this argument also does not help the appellant. 29. Though appellant-accused, in his statement under Section 313 Cr.P.C., stated that deceased came armed with an axe to inflict injuries on him but he snatched the axe from the deceased and inflicted injuries to the deceased in his self defence but none of the eye-witnesses were asked about this fact in their cross-examination. Further, no injury was found on the person of accused and the eye-witness clearly stated that accused came behind the deceased, armed with an axe and inflicted injuries on his neck and head. As such, this defence clearly seems to be after thought and is unbelievable. 30. Considering the above discussed evidence, we find sufficient corroboration in the evidence of the prosecution witnesses, who supported the prosecution version of the case. In view of the above, we have no hesitation in holding that the prosecution could prove by adducing cogent and reliable evidence, beyond all reasonable doubt, that the appellant caused death of the deceased by inflicting blows with an axe and thus he was guilty of committing culpable homicide. 31. In view of the above, we have no hesitation in holding that the prosecution could prove by adducing cogent and reliable evidence, beyond all reasonable doubt, that the appellant caused death of the deceased by inflicting blows with an axe and thus he was guilty of committing culpable homicide. 31. Now, the question is whether the appellant was guilty of committing murder under Section 302 IPC or culpable homicide not amounting to murder under Section 304 IPC. 32. Except in the cases mentioned in Section 300 IPC, culpable homicide is murder, if the act by which the death is caused is one with the intention of causing death, or. Secondly- if it is done with the intention of causing such bodily injury as the offender known to be likely to cause the death of a person to whom the harm is caused or, thirdly- if it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or fourthly- if the person committing the act knows that it is so eminently dangerous that it must, in all probability cause death or such a bodily injury as is likely to cause death and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. Section 300 IPC provides the following exceptions. "Exception 1.-When culpable homicide is not murder.-Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. The above exception is subject to the following provisions:- First.- That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person. Secondly.- That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant. Thirdly.-That the provocation is not given by anything done in the lawful exercise of the right of private defence. Explanation.-Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact. Thirdly.-That the provocation is not given by anything done in the lawful exercise of the right of private defence. Explanation.-Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact. Exception 2.- Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation and without any intention of doing more harm than is necessary for the purpose of such defence. Exception 3.- Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused. Exception 4.-Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. Explanation.-It immaterial in such cases which party offers the provocation or commits the first assault. Exception 5. - Culpable homicide is not murder when the person whose death is caused being above the age of eighteen years, suffers death or takes the risk of death with his own consent." 33. Culpable homicide and murder involve the killing of a person. What distinguishes these two offences is the presence of a special `mens rea', which consists of four mental attitudes in the presence of any of which the lesser offence becomes greater. These four mental attitudes are stated in Section 300, IPC, distinguishing murder from culpable homicide. In view of the above, in a murder case, the court is required to make proper appreciation of the evidence and of law before reaching the conclusion that the case proved is culpable homicide, because all "murder" is "culpable homicide" but not vice-versa. "Culpable homicide" sans "special characteristics of murder" as defined is Section 300 IPC is culpable homicide not amounting to murder. 34. "Culpable homicide" sans "special characteristics of murder" as defined is Section 300 IPC is culpable homicide not amounting to murder. 34. From the evidence on record, as discussed above, it has been found that at the time of occurrence, the deceased was returning to his house from his agricultural field and the appellant returning to his house from his agricultural field and the appellant came behind him, armed with an axe, and inflicted axe blows on the neck and head with full force, resulting into instantaneous death, which apparently shows that he had pre-meditation to kill Mansha Ram and that is why he came behind him, armed with sharp-edged weapon. Therefore, as the offence was committed with pre-meditation in a cruel or unusual manner, when the deceased was returning from his agricultural field, the same is covered by the definition of murder. In view of the above, we are inclined to hold that the appellant committed the offence of murder, i.e. offence under Section 302 IPC. 35. So far as mens rea is concerned, in the present case, where the murder was committed when the deceased Mansha Ram was returning from his agricultural field to house and no talks took place between the accused and the deceased and the incident took place at 9.30 p.m., in the street going towards the house of the deceased and accused came there armed with sharp-edged weapon and inflicted two repeated blows on the neck and head of deceased resulting in instantaneous death. Further, as per the prosecution evidence, there was enmity between the families of the deceased and accused and FIR Ex. P. 15 was lodged by Prabhu Ram (brother of deceased) prior to the incident on 1.10.2000 against Sheeshpal, Burjram (family members of the accused) and another FIR Ex.P/16 was lodged by the son of Prabhu Ram (PW.1) on 11.5.1998 against Sohni W/o Bhera Ram for the offences regarding Sections 341 and 323 IPC and Section 3(i)(x) of the Act of 1989, which clearly shows that there was enmity between the two families. 36. 36. So far as offences under Section 3(2)(5) of the Act of 1989 is concerned, the law declared by the Apex Court in the case of Ramdas vs. State of Maharashtra (2007) 2 SCC 170 ) clearly lays down the proposition that to attract the harsher provisions of the Act of 1989, it must be established by the prosecution that the offence was committed on a Member of ST Community because of the fact she was a member of such community. In the instant case, we do not find any evidence on record that the deceased was murdered because he was a member of SC Community. Hence, applying the law declared by the Apex Court, as aforesaid, in this regard, we are of the opinion that the essential ingredients of the offence punishable under Section 3(2)(5) of the Act of 1989 cannot be said to have been proved. Mere perpetrations of a crime on a member of SC or ST Community, is not sufficient to attract aforesaid penal provisions of the Act of 1989. It must also be shown that such an offence had been committed upon the deceased since he was a member of such community. In absence of proof such fact, we are constrained to hold that the offence punishable under Section 3(2)(5) of the Act of 1989 has not been established. 37. In view of the above, we find that the prosecution witnesses had very ably described the occurrence and their presence at the spot cannot be doubted. The appellant has no worthwhile defence to offer. We find the prosecution had established the case against the appellant beyond all reasonable doubt for the offence punishable under Section 302 IPC but failed to establish the offence punishable under Section 3(2)(5) of the Act of 1989 and was rightly sentenced as aforesaid. Consequently, the appeal is dismissed with the above modifications.