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2023 DIGILAW 1585 (AP)

Kamireddi Sai Kumar v. State of Andhra Pradesh

2023-12-15

T.MALLIKARJUNA RAO

body2023
ORDER : 1. This Criminal Petition is filed by Petitioner/A.4 under Section 438 of the Code of Criminal Procedure, 1973 (for short, ‘Cr.P.C’) seeking anticipatory bail in Crime No. 109 of 2022 of Sullurupet Police Station, Nellore District, registered for the offences punishable under Section 448, 326, 324, 323, 427 and 506 read with 34 Indian Penal Code, 1860 (for short, ‘I.P.C’) and Section 3 (1) (r) (s) of SCs & STs (POA) Act, 1989 (for short, ‘the act’). 2. Brief facts of the Prosecution case is that, the offences allegedly said to have been occurred on 15.08.2023 at about 21.40 hours at Soniagandhi nagar, Sullurupeta town, at that time, there was heavy rain and water stagnated on the street. All the accused were travelling in the car and A.4 was driving the car rashly. When the car passed, the water stagnated on the road have spilled on Sridhar and his wife and those two persons stopped the car. A1 and five members have got down the car and arguing with Sridhar and his wife. While the Defacto Complainant’s father was standing on the road, A1 along with other accused picked up quarrel with him and abused him by touching his caste on the pretext that he kept boulders on the road. When the Defacto Complainant questioned them, all the accused trespassed into the Defacto Complainant’s house by kicking the gate door, beat him on his face as a result of which, his tooth were dislocated. They also pelted stones on him and his younger brother and caused multiple injuries. A.1 also abused the Defacto Complainant’s mother on her caste lines and threatened her with dire consequences that to vacate the house and damaged flower pots and created havoc in the premises. 3. They also pelted stones on him and his younger brother and caused multiple injuries. A.1 also abused the Defacto Complainant’s mother on her caste lines and threatened her with dire consequences that to vacate the house and damaged flower pots and created havoc in the premises. 3. Learned counsel for the Petitioner/A.4 submits that due to political influence, a false case was foisted against the Petitioner; the ingredients of the alleged offences are not attracted against the Petitioner; the Petitioner is entitled to the benefit of the Hon’ble Apex Court’s Judgment rendered in Arnesh Kumar vs. State of Bihar and Another, (2014) 8 SCC 273 most of the investigation is completed, except filing of the charge sheet; the other Accused in this case, were already released on bail; Petitioner was ready and willing to cooperate fully with the investigation and he is ready to furnish suitable security and abide by any conditions which the Hon’ble Court deem fit and proper. 4. Learned Assistant Public Prosecutor, for the Respondent-State opposed to grant bail to the Petitioner/A.4 on the ground of investigation is pending and if the Petitioner is enlarged on anticipatory bail, there is a possibility of tampering with the evidence. 5. Heard learned counsel for the Petitioner/A.4, the learned Assistant Public Prosecutor representing the respondent/State. 6. Perused the material on record. A serious objection has been raised regarding the maintainability of the anticipatory bail application on the ground that crime is registered against the accused persons under section 3 (1) (r) (s) of SCs & STs (POA) Act. 7. It is useful to reproduce section 18 of the SCs/STs Act, which reads as under: 18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in section 438 of the code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.” 8. A reading of Section 3(2)(v) of the Act makes it clear that merely because a person who does not belong to a member of a Scheduled Caste/Scheduled Tribe commits any offence under the Indian Penal Code punishable with imprisonment for a term of 10 years or more against a person belonging to a Scheduled Caste/Scheduled Tribe, the offence under section 3(2)(v) would not get attracted. Section 3(2)(v) was amended by the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2016 which came into effect on 26th January, 2016. The words “……… on the ground that” under section 3(2)(v) have been substituted with “……. Knowing that such person is a member of a Scheduled Caste/Scheduled Tribe.” Thus, subsequent to the amendment sine qua non for application of Section 3(2)(v) is that offence must be committed by a person who does not belong to a member of a Scheduled Caste/Scheduled Tribe against a person belonging to Scheduled Caste/Scheduled Tribe with the knowledge that such person is a member of Scheduled Caste/Scheduled Tribe. In the absence of averment to that effect, the offence under section 3(2)(v) would not get attracted. 9. In Hitesh Verma vs. State of Uttarakhand and Another, (2020) 10 SCC 710 the Hon’ble Apex Court referred the decision in Khuman Singh vs. State of Madhya Pradesh, 2019 SCC Online SC 1104 wherein the Hon’ble Apex Court held that: In a case for applicability of Section 3 (2) (v) of the Act, the fact that the deceased belonged to Scheduled Caste would not be enough to inflict enhanced punishment. This Court held that there was nothing to suggest that the offence was committed by the appellant only because the deceased belonged to Scheduled Caste. The Court held as under: 15. As held by the Supreme Court, the offence must be such so as to attract the offence under Section 3 (2) (v) of the Act. The offence must have been committed against the person on the ground that such person is a member of Scheduled Caste and Scheduled Tribe. In the present case, the fact that the deceased was belonging to “Khangar” Scheduled Caste is not disputed. There is no evidence to show that the offence was committed only on the ground that the victim was a member of the schedule Caste and therefore, the conviction of the appellant-accused under Section 3 (2) (v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act is not sustainable. 10. In Prathvi Raj Chauhan vs. Union of India and Others, (2020) 4 SCC 727 the Hon’ble Apex Court referred the decision in Vilas Pandurang Pawar and Another, (2012) 8 SCC 795 wherein, the Hon’ble Apex Court held that: “10. 10. In Prathvi Raj Chauhan vs. Union of India and Others, (2020) 4 SCC 727 the Hon’ble Apex Court referred the decision in Vilas Pandurang Pawar and Another, (2012) 8 SCC 795 wherein, the Hon’ble Apex Court held that: “10. The scope of Section 18 of the SC/ST Act read with Section 438 of the Code is such that it creates a specific bar in the grant of anticipatory bail. When an offence is registered against a person under the provisions of the SC/ST Act, no court shall entertain an application for anticipatory bail, unless it prima facie finds that such an offence is not made out. Moreover, while considering the application for bail, scope for appreciation of evidence and other material on record is limited. The court is not expected to indulge in critical analysis of the evidence on record. When a provision has been enacted in the Special Act to protect the persons who belong to the Scheduled Castes and the Scheduled Tribes and a bar has been imposed in granting bail under Section 438 of the Code, the provision in the Special Act cannot be easily brushed aside by elaborate discussion on the evidence.” In light of the above settled legal position, now I appreciate the contentions raised on behalf of both sides. 11. Learned counsel for the Petitioner/A.4 contends that the allegations in the complaint do not establish A.4’s personal knowledge of the Defacto Complainant's caste. The material on record prima facie suggests that the Petitioner/A.4 made caste abuses against the Defacto Complainant's father indicating that he was aware of the Defacto Complainant's caste. According to the Prosecution's case, Petitioner/A.4 was also present during the incident. In support of said stand, the Prosecution relied on statements of witnesses U/sec.161 of Cr.P.C., during the course of investigation. The accusation against the Petitioner/A.4 is that he struck the Defacto Complainant’s face causing the loss of three teeth. The accused are also alleged to have threatened the Defacto Complainant and his family members to vacate the house under the threat of killing them. They reportedly destroyed flower plants and attempted to forcibly open the doors, when the Defacto Complainant’s family objected. 12. Learned counsel for the Petitioner argues that Section 326 of IPC is not applicable to the facts of the case. They reportedly destroyed flower plants and attempted to forcibly open the doors, when the Defacto Complainant’s family objected. 12. Learned counsel for the Petitioner argues that Section 326 of IPC is not applicable to the facts of the case. To attract Section 34 of IPC, no overt act is needed on the part of the accused, if they share common intention with others in respect of the ultimate criminal act, which may be done by any one of the accused sharing such intention. The essence of Section 34 of IPC is simultaneous consensus of the minds of persons participating in the criminal action to bring about a particular result. Such consensus can be developed at the spot and thereby intended by all of them. As per the Prosecution's case, all accused went to the Defacto Complaint’s premises and allegedly participated in the offence. 13. Learned counsel for the Petitioner/A.4 further argues that even according to the Prosecution's case, the grievous injury said to have caused to the Victim, resulted from beating on his face, leading to the dislocation of his tooth. The material placed on record shows the Victim sustained grievous injury. The Petitioner contends that deadly weapon was not used for allegedly causing grievous injury to the Victim. In this context, learned counsel for the Defacto Complainant relies on Section 161 of Cr.P.C., statements recorded during the investigation. However, the Petitioner's counsel disputed the correctness of those statements by contending that such a version is not put forth in the First Information Report. It is settled law that an FIR is not an encyclopedia of facts, and a Victim is not expected to give details of the incident in the FIR. FIR is not an encyclopedia expected to contain all the details of the prosecution case; it may be sufficient if the broad facts of the prosecution case alone appear. If any overt act is attributed to a particular accused among the assailants, it must be given greater assurance. The statements of witnesses i.e., LWs.1 to 3 recorded under section 161 of Cr.P.C. during the investigation indicate that the Victim was beaten with a stone on his face. 14. Learned counsel for the Petitioner contends that the statements recorded under section 161 of Cr.P.C., can only be used to demonstrate contradictions or omissions and they are deemed inadmissible in evidence and cannot be relied on. 15. 14. Learned counsel for the Petitioner contends that the statements recorded under section 161 of Cr.P.C., can only be used to demonstrate contradictions or omissions and they are deemed inadmissible in evidence and cannot be relied on. 15. Learned counsel for the Petitioner further relied on the decision in Parvat Singh and Others vs. State of Madhya Pradesh, (2020) 4 SCC 33 wherein the Hon’ble Supreme Court held that: 13.1.…………….As per the settled proposition of law, the statement recorded under Section 161 CrPC can be used only to prove the contradictions and/or omissions. Therefore, as such, the High Court has erred in relying upon the statement of PW-8 recorded under Section 161 CrPC while observing that the appellants were having the lathis. 16. Learned counsel for the Petitioner further relied on the common decision in Junaid vs. State and Others, 2021 SCC Online Del. 724 wherein the High Court of Delhi held that: 6………………. The “statement under Section 161 Cr.PC is Inadmissible in Evidence and cannot be Relied Upon For Conviction…………” 17. This Court views that the proposition of law relied on by the Petitioner’s counsel cannot be disputed. The above citations do not show that section 161 of Cr.P.C., statements cannot be relied on while dealing with the bail applications. At this stage, it is pertinent to refer to the decision in Indresh Kumar vs. State of Uttar Pradesh and Another, 2022 Live Law (SC) 610 the Hon’ble Supreme court held that: The High Court has ignored the materials on record including incriminating statements of witnesses under section 164/161 of the Code of Criminal Procedure. Statements under Section 161 of Cr.P.C., may not be admissible in evidence, but are relevant in considering the prima facie case against an accused in an application for grant of bail in case of grave offence. 18. Learned counsel for the Petitioner/A.4 contends that the stone is not a deadly weapon. In Prabhu vs. State of Madhya Pradesh, Crl. Appeal No. 1956 of 2008 and SLP (Crl.) No. 1418 of 2008 the Hon’ble Supreme Court held that: 13………………………At this juncture, it would be relevant to note that in some provisions e.g. Sections 324 and 326 expression “dangerous weapons” is used. In some other more serious offences the expression used is “deadly weapon” (e.g. Sections 397 and 398). Appeal No. 1956 of 2008 and SLP (Crl.) No. 1418 of 2008 the Hon’ble Supreme Court held that: 13………………………At this juncture, it would be relevant to note that in some provisions e.g. Sections 324 and 326 expression “dangerous weapons” is used. In some other more serious offences the expression used is “deadly weapon” (e.g. Sections 397 and 398). The facts involved in a particular case, depending upon various factors like size, sharpness, would throw light on the question whether the weapon was a dangerous or deadly weapon or not. That would determine whether in the case Section 325 or 326 would be applicable. 19. Even otherwise, the contents of the FIR indicate that the stones were employed in the commission of offence. At this stage, it cannot be said that the stones said to be used by the Accused persons are not dangerous weapons. The material on record prima facie shows the involvement of the Petitioner/A.4’s role in the commission of offence. As the material on record prima facie suggests that the injuries were said to be caused by the user of the stones. At this stage, it cannot be conclusively asserted that the stones used by the accused persons are not dangerous weapons and the ingredients of section 326 of IPC are not attracted to the facts of the present case. 20. In view of the above facts and circumstances and based on the overt acts attributed against the Petitioner/A.4, this Court is not inclined to grant bail to the Petitioner/A.4. 21. It is explicitly clarified that the observations made in this order are preliminary and pertain solely to the decision on the present application without indicating a stance on the merits of the case. 22. Accordingly, this Criminal Petition is dismissed. 23. Miscellaneous applications, pending if any, in this petition, shall stand dismissed.