JUDGMENT Hon’ble Amar Singh Chauhan, J.—Challenge in this appeal is to the judgement and order dated 21.8.2009 passed by the Additional Sessions Judge/Fast Track Court No. 3, Jalaun at Orai in ST No. 67 of 2006, whereby the appellant Lakhan Singh has been convicted and setnenced to ten years rigorous imprisonment under Section 307 IPC and a fine of Rs. 3000/-, life imprisonment under Section 3(2)(v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (herein after referred to as “SC and ST Act”) and a fine of Rs. 1000/- with default stipulation. 2. In short compass the facts giving rise to the present appeal are that an application was moved by Chaturbhuj, son of Shri Sumer, resident of Minaura, Kalpi, police station Kotwali Orai which was addressed to the Inspector-In-charge of the police station Kotwali, Orai at 8.00 p.m. on 10.6.2006 mentioning therein that when his father was sitting on the cot in front of his house alongwith several other persons of the family, at that time Lakhan, son of Radhey, who is inimical to them, came there armed with country made pistol and with an intention to kill, fired at his father. The bullet hit his father below his shoulder due to which his father became injured. The incident was witnessed by the informant, his dauther Surekha and his aunt Ramiya. 3. On the basis of the aforesaid report, a case was registered against the accused-Lakhan Singh under Section 307 IPC, which was entered in GD vide report No. 27 on 10.6.2006 at 11.30 p.m.. After the registration of the case, the injured was sent to the District Hospital, Orai through police for his medical examination. 4. On 11.6.2006, another application was given to the In-charge, police station Kotwali by one Bhagwan Das, son of Mani Ram to the effect that he belongs to scheduled caste (Chamar). On 10.6.2006 at about 8.00 a.m., Lakhan Singh Lodhi, with an intentionn to kill, fired at Sumer in his presence. He alongwith other persons of the locality, while taking the accused to Orai, then Lakhan Singh Lodhi, Brijendra Singh Lodhi, Pradhan and Jagat Singh armed with gun and country made pistol again arrived there and after beating them with the butt of the gun, took them to their house and with an intention to kill, they fired at them, due to which they received injuries. They kept them confined in the house throughout the night and using caste derogatory language, they were saying that if they will depose in favour of Sumer, their fate will be the same as of Sumer. At the time of incident, his brother Ravindra, Jamuna Das and other persons also arrived at the spot. It is further stated in the report lodged by Bhagwan Das that they managed to escape, but whereabouts of Ghamandi is not known. 5. On the basis of the aforesaid report, no separate case was registered, but the facts given in this application was clubbed with the facts given by the informant Chaturbhuj in his application. 6. After the registration of the case, the investigation of the case was entrusted to SI Sushil Kumar, PW-6. This witness has stated that on 11.6.2006 he was posted at the police station Kotwali. After the case was entrusted to him for investigation, he copied the report lodged by the injured Sumer from CD, medical report of the injured and recorded the statement of the chik writer Constable Brijesh Kumar. He also recorded the statement of the informant Chaturbhuj and inspected the spot on his pointing out and prepared the site plan, which was proved by this witness as Ext. Ka-5. This witness has also recorded the statement of eye-witnesses Surekha and Prahlad and entered the same into case diary. As case under Section 3(1)10 of SC and ST Act was also disclosed, the investigation was stopped by him and further investigation was done by the Circle Officer. 7. PW-5 is Asha Ram Yadav, Circle Officer, Nagar, Orai. He deposed that he perused the case diary written by SI Sushil Kumar. As, prima facie case under Section 307, 504, 506 IPC was made out, Section 3(2)(v) of SC and ST Act was also included. This witness has further deposed that he recorded the statement of the accused-Lakhan on 30.6.2006. On 21.7.2006, he recorded the contents of the application given by Bhagwan Das in CD. On 23.7.2006, he recorded the statement of injured Sumer, witnesses Smt. Ramiya, Lalta Prasad, Bhagwan Das and Ravindra Kumar in the case diary. He also recorded the criminal history of the accused-Lakhan in the case diary. The accused Lakhan was having criminal history of nine cases. Accused Brijendra Singh and Jagat Singh were also having criminal history of seven cases each. He also recorded the criminal history of the accused-Lakhan in the case diary. The accused Lakhan was having criminal history of nine cases. Accused Brijendra Singh and Jagat Singh were also having criminal history of seven cases each. This witness also recorded the statement of Dr. Umesh Ahirwar and SI L.R. Wishwas in the case diary. On 1.8.2006, this witness has recorded the statement of accused Brijendra Singh and on 4.8.2006 he recorded the statement of witnesses Ghamadi and Jamuna Das in the case diary. After completing the necessary formalities, he submitted the charge-sheet against accused Lakhan and Brijendra Singh under Sections 307, 504, 506, 342, 323 IPC and 3(2)(5) SC and ST Act, which he proved as Ext. Ka-4. 8. To bring home the guilt of the accused, the prosecution has examined as many as ten witnesses. 9. PW-1 is the injured witness Sumer. He deposed that on 10.6.2006 when he was sitting on the cot, accused Lakhan came and enquired about his sons. When this witness told him that they have gone somewhere, accused Lakhan after abusing him and using caste derogatory language, fired at him which struck the right side of his chest. On hearing the sound of fire, his son Chaturbhuj rushed there. The incident was witnessed by his grand-daughter Surekha and wife Raniya. When his son Chaturbhuj and Bhagwan Das were going to lodge the FIR, they were caught by accused Brijendra and Jagat. At one breath this witness has stated that there was no one with Bhagwan Das, but at another he stated that Ghamandi was with Bhagwan Das. Bhagwan Das was taken away by Jagat and Brijendra and beaten him. He was medically examined after the report was lodged. Thereafter, he was sent to Jhansi, where he got treatment. On seeing the accused Lakhan in Court, this witness has recognised and stated that he is the person who has fired at him. 10. PW 2 is Dr. Umesh Ahirwar, who has medically examined the injured Sumer. This witness has deposed that on 10.6.2006 he was posted at District Hospital Orai on the post of Emergency Medical Officer. On that date at 11.45 p.m., he had medically examined the injured Sumer, son of Lalanju, resident of Karmeh Minaura, police station Kotwali, Orai, who was brought by Home Guard 1453 Kishan Kumar of police station Kotwali Orai. This witness has deposed that on 10.6.2006 he was posted at District Hospital Orai on the post of Emergency Medical Officer. On that date at 11.45 p.m., he had medically examined the injured Sumer, son of Lalanju, resident of Karmeh Minaura, police station Kotwali, Orai, who was brought by Home Guard 1453 Kishan Kumar of police station Kotwali Orai. Doctor found the following injuries on the person of Sumer: “3-1/2 cm x 3 cm fire-arm injuries on the anterior aspect of right shoulder. Margin irregular and inverted. Colar burn around the whole entry wound. There were swelling on whole shoulder. However, x-ray was advised.” 11. This witness has further stated that both the injuries were caused by fire-arm and were fresh. Doctor has prepared the injury report in his handwriting and proved the same as Ext. Ka-1. This witness has further stated that it is possible that these injuries were caused on 10.6.2006 at 8.00 p.m. by gun or country made pistol and they were dangerous to life. 12. PW 3, Chaturbhuj is the complainant of the case. He has reiterated the versions given in the FIR. He further deposed that when the accused was challenged by the witnesses Surekha and Ramiya, accused ran away giving threats. Thereafter this witness got the report lodged after ascribing the same from Ramesh Chandra and put his thumb impression on it, which was proved by this witness as Ext. Ka-5. 13. PW-4 is Dr. Srikant Tewari, Surgeon District Hospital, Orai. He deposed that on 11.6.2006, he was posted at District Hospial in the emergency department as Medical Officer. On that date at 1.30 p.m., he has medicallly examined Bhagwan Das, aged 35 years, son of Mani Ram, who was brought by Homeguard Devendra Singh. Doctor found the following injuries on the person of Bhagwan Das: “(1) laceration of 1X0.2 c.m. size in left side of forehead. (2) Punctured wound of 0.2 X 0.2 c.m. size in left side of face. (3) Tender swelling of 1X2 c.m. size in right knee. (4) Tender swelling of 4X2 c.m. size in right calf area. (5) Tenderness in left side of thigh. (6) Abrasion of 1X1 c.m. size in left medial malleous.” 14. However, the doctor opined that the injuries were caused by impact of blunt and hard object and about 14-15 hours old in duration and simple in nature. 15. (4) Tender swelling of 4X2 c.m. size in right calf area. (5) Tenderness in left side of thigh. (6) Abrasion of 1X1 c.m. size in left medial malleous.” 14. However, the doctor opined that the injuries were caused by impact of blunt and hard object and about 14-15 hours old in duration and simple in nature. 15. The evidence of PW 5, Asha Ram Yadav, Circle Officer, Nagar Orai and PW 6, SI Sushil Kumar has already been discussed above. 16. PW-7, V. D. Pathak is x-ray technician. He deposed that on 12.6.2006, he was posted at the Radiology department in Maharani Laxmi Bai, Medical College, Jhansi. On that date he has conducted two x-rays of the injured Sumer on the basis of which, x-ray report was given by Dr. Rachna Chaurasia, Resident Doctor, which was proved by this witness as Ext. Ka-6. 17. PW 8 is Constable 274 CP Brijesh Kumar, police office, Orai. He deposed that on 10.6.2006 he was posted at police station Kotwali Orai on the post of Constable. On that date at 11.30 p.m., on the basis of written report of the informant Chaturbhuj, Ext. Ka-4, he lodged the FIR at case crime No. 966 of 2006, under secion 307 IPC against Lakhan, which he proved as Ext Ka-7. He also stated that the aforesaid facts were mentioned in GD No. 27 on 10.6.2006 at 23.30 hours. He proved the corbon copy of GD at Ext. Ka-8. This witness also stated that he sent the injured through Home Guard 1453 Krishna Kumar, for medical examination and treatment. 18. PW 9 is Bhagwan Das, the injured witness. He deposed that in his knowledge, no incident took place on 10.6.2006 at 8.00 p.m.. He further deposed that neither he was taking Sumer on bullockcart nor any one has caught him and beaten him or kept him confined. 19. On this deposition, this witness was declared hostile. 20. PW 10 is Dr. Rachna Chaurasia, Lecturer Maha Rani Laxmi Bai Medical College, Jhansi. She deposed that in the month of June she was posted in Maha Rani Laxmi Bai Medical College, Jhansi as Junior Resident doctor. Sumer, son of Lalanchu was hospitalised there. On being advised x-ray was done and the report was prepared by her under her hand writing and signature. This witness has proved the x-ray report as Ext. Ka-9. 21. She deposed that in the month of June she was posted in Maha Rani Laxmi Bai Medical College, Jhansi as Junior Resident doctor. Sumer, son of Lalanchu was hospitalised there. On being advised x-ray was done and the report was prepared by her under her hand writing and signature. This witness has proved the x-ray report as Ext. Ka-9. 21. After the evidence of the prosecution was closed, the statement of the accused was recorded under Section 313 Cr.P.C., in which he denied the occurrence and stated that he has falsely been implicated in the case. 22. The learned Additional Sessions Judge, Jalaun at Orai after perusing the record and hearing the counsel for the parties came to the conclusion that prosecution had established its charge of attempt to murder of injured, who belongs to scheduled caste to the hilt against appellant and, therefore, convicted and sentenced him as has already mentioned herein-above vide judgement and order, hence this appeal questioning the said judgement. 23. Feeling aggrieved, the accused has come up in appeal. 24. We have heard Shri Amit Tripathi and Shri Ved Kant Mishra, learned counsel for the appellant and Shri Saghir Ahmad, learned Additional Government Advocate for the State-respondent and perused the record of the case. 25. Learned counsel for the appellant mainly assailed the impugned judgement of conviction and sentence on two counts. Firstly, that this is not a case where life imprisonment could have been awarded. In any event there is no material to bring in application of Section 3(2)(v) of SC and ST Act. 26. Secondly, that no offence under Section 307 IPC is disclosed from the evidence tendered during trial and committed crime will not be out of the purview of Section 324 IPC because injured sustained one gun shot injury which cannot be said on vital part. It is unsafe to conclude that the appellant had requisite mens rea to cause murder of the injured. Therefore, prayed that sentence be reduced. 27. In response, learned Additional Government Advocate submitted that though Section 3(2)(v) of the SC and ST Act may not be applicable, but imposition of sentence of ten years rigorous imprisonment is also permissible because the doctor opined the injury as may be dangerous to life. Moreover there is fire-arm injury over the right shoulder fracture of neck humorous and bullet was removed from the wound. 28. Moreover there is fire-arm injury over the right shoulder fracture of neck humorous and bullet was removed from the wound. 28. At this juncture, it is necessary to take note of Section 3 of the SC and ST Act. As the Preamble to the Act provides that “ the Act has been enacted to prevent the commission of offence of atrocities against the member of the Scheduled Castes and the Scheduled Tribes. The expression “atrocities” is defined in Section 2 of the SC and ST Act to mean an offence punishable under Section 3. The said provision so far relevant as follows: Section 3(2)(v)—Punishment for offence of atrocities : (2) whoever, not being a member of a Scheduled Caste or a Scheduled Tribe- xxx (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 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. xxx 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 case in hand, no evidence has been led to establish this requirement. It is not the case of the prosecution that offence was committed since the injured was a member of scheduled castes. In the absence of evidence to that effect, Section 3(2)(v) of SC and ST Act has no application. Therefore the sentence awarded under Section 3(2)(v) of the Act is liable to be set aside. 29. In Dinesh alias Buddha v. State of Rajasthan, AIR 2006 SC 1267 , it has been held by Hon’ble Supreme Court that if no evidence is led to establish that rape committed on victim since she was member of scheduled caste, Section 3(2)(v) of SC and ST Act has no application. 30. For the purpose of conviction under Section 307 IPC, prosecution has to establish (i) the intention to commit murder and (ii) the act done by the accused. The burden is on the prosecution that accused had attempted to commit the murder of the prosecution witness. 30. For the purpose of conviction under Section 307 IPC, prosecution has to establish (i) the intention to commit murder and (ii) the act done by the accused. The burden is on the prosecution that accused had attempted to commit the murder of the prosecution witness. Whether the accused person intended to commit murder of another person would depend upon the facts and circumstances of each case. To justify a conviction under Section 307 IPC, it is not essential that fatal injury capable of causing death should have been caused. Although the nature of injury actually caused may be of assistance in coming to a finding as to the intention of the accused, such intention may also be adduced from other circumstances. The intention of the accused is to be gathered from the circumstances like the nature of the weapon used, words used by the accused at the time of the incident, motive of the accused, parts of the body where the injury was caused and the nature of injury and severity of the blows given etc. 31. In the case of State of M.P. v. Kashiram and others, 2009 4 SCC 26 , the scope of intention for attracting conviction under Section 307 IPC was elaborated and it was held as under : “It is sufficient to justify a conviction under Section 307 if there is present an intent coupled with some overt act in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. The section makes a distinction between the act of the accused and its result, if any. The Court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section. Therefore, an accused charged under Section 307 IPC cannot be acquitted merely because the injuries inflicted on the victim were in the nature of a simple hurt.” 32. This position was highlighted in State of Maharashtra v. Balram Bama Patil, (1983) 2 SCC 28 , Girija Shanker v. State of U.P., (2004) 3 SCC 793 and R. Prakash v. State of Karnataka, (2004) 9 SCC 27 . 33. Whether there was intention to kill or knowledge that death will be caused is a question of fact and would depend on the facts of a given case. 33. Whether there was intention to kill or knowledge that death will be caused is a question of fact and would depend on the facts of a given case. The circumstances that the injury inflicted by the accused was simple or minor will not by itself rule out application of Section 307 IPC. The determinative question is the intention or knowledge, as the case may be, and not the nature of the injury.” (State of M.P. v. Saleem, (2005). 34. Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every Court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed, etc. This position was illuminatingly stated by this Court in Sevaka Perumal v. State of T.N., (1991) 3 SCC 471 .” 35. Having regard to the weapon used for causing fatal injury on right shoulder of the injured, situs of the injury, severity of the blow and requisite mens rea to cause murder the conviction of appellant under Section 307 IPC is unassailable. 36. In view of what has been stated above, the conviction and sentence of the appellant under Section 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act is set aside, whereas the conviction and sentence under Section 307 IPC is affirmed. 37. The appeal is partly allowed. 38. The appellant is in jail. He shall serve out the sentence awarded to him under Section 307 IPC.