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2019 DIGILAW 992 (RAJ)

Laxman v. State of Rajasthan

2019-04-03

BANWARI LAL SHARMA, SABINA

body2019
JUDGMENT : 1. Appellant has filed this appeal challenging his conviction and sentence under Section 341, 326 Indian Penal Code, 1860 (hereinafter referred to as 'I.P.C.') and Section 3-2(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the 'Act') by the Trial Court vide judgment/order dated 25.07.2018. 2. Learned counsel for the appellant has submitted that no offence under the Act could be said to have been committed by the appellant. A perusal of the statement of the complainant himself does not reveal that any offence under the Act had been committed by the appellant. Appellant has been falsely involved in this case. Independent witnesses have not supported the prosecution case. Hence, conviction of the appellant on the sole testimony of the PW-1 was liable to be set aside. 3. Learned state counsel has opposed the appeal and has submitted that the prosecution had been successful in proving its case. 4. Prosecution story in brief is that on 23.08.2013, complainant Budhram was going to the house of his sister. At about 9.30 a.m., when he had started from his house and had reached near the house of Vishram Gurjar, appellant came to the spot and snatched his mobile-phone and demanded money for liquor. Complainant gave one quarter of country made liquor to the appellant. Thereafter, appellant again demanded money from the complainant and forcibly took out Rupees four thousand and seven hundred from his pocket. Appellant then took out a knife from his pant and gave a blow with it on the hand of the complainant. As a result, complainant suffered injuries. 5. On the basis of the statement of the complainant (Exhibit P-1), formal FIR No. 05 dated 24.08.2013 under Sections 323, 341, 379 I.P.C. (Exhibit P-2) was registered at Police Station Batoda, District Sawai Madhopur. 6. After completion of investigation and necessary formalities, challan was presented against the appellant. Charges were framed against the appellant under Section 341, 323, 324, 326 I.P.C. and Section 3(ii)(v) of the Act vide order dated 18.12.2014. 7. Prosecution in order to prove its case, examined thirteen witnesses. Appellant when examined under Section 313 Code of Criminal Procedure, 1973, deposed that he was innocent and had been falsely involved in this case. Appellant did not examine any witness in his defence. 8. 7. Prosecution in order to prove its case, examined thirteen witnesses. Appellant when examined under Section 313 Code of Criminal Procedure, 1973, deposed that he was innocent and had been falsely involved in this case. Appellant did not examine any witness in his defence. 8. Complainant while appearing in the witness box as PW-1 has deposed that on 23.08.2013, he was going to the house of his sister and when he had reached near the house of Vishram Gurjar, he met the appellant. Appellant snatched his mobile-phone and demanded money from him for liquor. He gave Rupees thirty five to the appellant for purchase of liquor. Appellant forcibly took out Rupees four thousand and seven hundred from his pocket. Thereafter, appellant took out a knife from his pant and inflicted injury on his left hand. 9. So far as other eye witnesses PW-2 Vishram Singh, PW-3 Bhagwati, PW-4 Bane Singh and PW-6 Muneem are concerned, they have not supported the prosecution case, during trial and were declared hostile. 10. Doctor who had conducted the medico legal examination of the complainant was examined as PW-12 and he proved the report Exhibit P-9. 11. As per Exhibit P-9, complainant had suffered an incised wound on his left wrist. Vide Exhibit P-10, injury suffered by the complainant was declared grievous in nature. 12. PW-13 Jalram Singh, Investigating Officer has deposed with regard to the investigation conducted by him. 13. The first question that requires consideration is as to whether, prosecution had been successful in establishing as to whether the appellant had committed offence punishable under Section 326 I.P.C. 14. Complainant while appearing in the witness box has categorically deposed that the appellant had inflicted a knife blow on his hand. The said version of the complainant is duly corroborated by medical evidence. As per Exhibit-9, appellant had suffered injury on his left wrist with a sharp edged weapon and as per Exhibit P-10, the said injury was grievous in nature. Complainant had suffered fracture of lower part of radius and ulna bone. Although, the other eyewitnesses have not supported the prosecution case, during trial, but from the statement of the complainant, it duly stands established that the appellant had inflicted a grievous injury with a knife on the left wrist of the complainant. Complainant had suffered fracture of lower part of radius and ulna bone. Although, the other eyewitnesses have not supported the prosecution case, during trial, but from the statement of the complainant, it duly stands established that the appellant had inflicted a grievous injury with a knife on the left wrist of the complainant. Hence, the prosecution had been successful in establishing that the appellant was guilty of offence punishable under Section 326 I.P.C. 15. The next question that requires consideration is as to whether prosecution had been successful in establishing the charge framed against the appellant with regard to offence punishable under Section 3(2)(v) of the Act. 16. It has been held by the Hon'ble Supreme Court in case of Asharfi Vs. State of Uttar Pradesh in (2018) 1 SCC 742 as under:- "In respect of the offence under Section 3(2)(v) of the SC/ST Prevention of Atrocities Act, the appellant had been sentenced to life imprisonment. The gravamen of Section 3(2)(v) of SC/ST Prevention of Atrocities Act is that any offence, envisaged under Indian Penal Code punishable with imprisonment for a term of ten years or more, against a person belonging to Scheduled Caste/Scheduled Tribe, should have been committed on the ground that "such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member". Prior to the Amendment Act 1 of 2016, the words used in Section 3(2)(v) of the SC/ST Prevention of Atrocities Act are "...... on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe". Section 3(2)(v) of the SC/ST Prevention of Atrocities Act has now been amended by virtue of Amendment Act 1 of 2016. By way of this amendment, the words "....... on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe" have been substituted with the words "........ knowing that such person is a member of a Scheduled Caste or Scheduled Tribe". By way of this amendment, the words "....... on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe" have been substituted with the words "........ knowing that such person is a member of a Scheduled Caste or Scheduled Tribe". Therefore, if subsequent to 26.01.2016 (i.e. the day on which the amendment came into effect), an offence under Indian Penal Code which is punishable with imprisonment for a term of ten years or more, is committed upon a victim who belongs to SC/ST community and the accused person has knowledge that such victim belongs to SC/ST community, then the charge of Section 3(2)(v) of SC/ST Prevention of Atrocities Act is attracted. Thus, after the amendment, mere knowledge of the accused that the person upon whom the offence is committed belongs to SC/ST community suffices to bring home the charge under Section 3(2)(v) of the SC/ST Prevention of Atrocities Act. In the present case, unamended Section 3(2)(v) of the SC/ST Prevention of Atrocities Act is applicable as the occurrence was on the night of 8/9.12.1995. From the unamended provisions of Section 3(2)(v) of the SC/ST Prevention of Atrocities Act, it is clear that the statute laid stress on the intention of the accused in committing such offence in order to belittle the person as he/she belongs to Scheduled Caste or Scheduled Tribe community. The evidence and materials on record do not show that the appellant had committed rape on the victim on the ground that she belonged to Scheduled Caste. Section 3(2)(v) of the SC/ST Prevention of Atrocities Act can be pressed into service only if it is proved that the rape has been committed on the ground that PW-3 Phoola Devi belonged to Scheduled Caste community. In the absence of evidence proving intention of the appellant in committing the offence upon PW-3-Phoola Devi only because she belongs to Scheduled Caste community, the conviction of the appellant under Section 3(2)(v) of the SC/ST Prevention of Atrocities Act cannot be sustained." 17. From the statement of the complainant recorded, during trial, it is not evident that the appellant had inflicted injury to the complainant on the ground that the complainant was a member of a Scheduled Caste or Scheduled Tribe. From the statement of the complainant recorded, during trial, it is not evident that the appellant had inflicted injury to the complainant on the ground that the complainant was a member of a Scheduled Caste or Scheduled Tribe. Rather from the statement of the complainant, it transpires that the appellant had demanded money from the complainant for purchase of liquor and when the said amount was not given, appellant inflicted a knife blow on the hand of the complainant. Appellant has been convicted of the offence under Section 3(2)(v) of the Act on the basis of presumptions, although, there was no evidence available on record to establish that the appellant had committed the offence under Section 3(2)(v) of the Act. Hence, in the facts of the present case, learned Trial Court fell in error in holding that the appellant was guilty of the offence punishable under Section 3(2)(v) of the Act. Hence, appellant is liable to be acquitted qua charge framed against him with regard to offence punishable under Section 3(2)(v) of the Act. 18. Accordingly, this appeal is partly allowed. Appellant is acquitted qua charge framed against him with regard to the offence punishable under Section 3(2)(v) of the Act. However, conviction of the appellant under Sections 341, 326 I.P.C. is maintained. Sentence of the appellant under Section 341 I.P.C. is maintained. Appellant is not a previous convict. There is nothing on record to suggest that the appellant is having any criminal antecedents. Complainant has suffered one injury on his left wrist. Hence, the sentence qua imprisonment of the appellant under Section 326 I.P.C. is liable to be reduced. Accordingly, sentence qua imprisonment of the appellant under Section 326 I.P.C. is reduced from rigorous imprisonment for ten years to rigorous imprisonment for two years and sentence qua fine is maintained.