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2024 DIGILAW 1400 (KER)

RAJU JOSEPH S/O JOSEPH v. STATE OF KERALA

2024-10-30

A.BADHARUDEEN

body2024
ORDER : 1. This Criminal Miscellaneous Case has been filed under Section 482 of the Code of Criminal Procedure (‘Cr.P.C.’ for short) seeking to quash Annexure-1 F.I.R. in Crime No. 64/2022 of Kidangoor Police Station, Kottayam, final report thereof and consequential S.C. No. 342/2022 pending before the Special Court, Kottayam. The petitioners are accused Nos. 1 and 2 in this case. 2. Heard the learned counsel for the petitioners and the learned Public Prosecutor in detail. Perused the relevant documents. 3. Here the prosecution alleges commission of offences punishable under Sections 352, 294(b), 323 r/w 34 of the Indian Penal Code as well as Section 3(2)(va) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (‘SC/ST Act’ for short). The prosecution case is that accused 1 and 2, who do not belong to either Scheduled Caste or Scheduled Tribe community, knowing fully well that the second witness, who is the son of the 6th witness, a member of Hindu Pulaya community, assaulted the second witness. The specific allegation is that the 2nd accused caught hold on the neck of the second witness, abused him, beaten him and kicked him down. The 1st accused and the sixth witness reached the place of occurrence, on hearing the noise. Then the 1st accused, beat on the body of the first witness along with the 2nd accused and assaulted the second witness. While trying to rescue the second witness by witness Nos. 6, 4, 5 and 1, the first witness sustained mental strain and the second witness sustained injuries. On this allegation, crime was registered alleging commission of offences punishable under Sections 323, 324, 326, 341, 506 read with Section 34 of IPC as well as under Section 3 of the SC/ST Act, on receipt of a complaint forwarded by the Magistrate under Section 156(3) Cr.P.C. Thereafter, the matter was investigated and final report was filed alleging commission of the offences now alleged in the final report. 4. While pursuing the relief of quashment of the proceedings, the learned counsel for the petitioners argued that there is no materials available in the prosecution records to incorporate offence under Section 3(2)(va) of the SC/ST Act though he did not argue on the other offences made out, prima facie, in the prosecution records. 4. While pursuing the relief of quashment of the proceedings, the learned counsel for the petitioners argued that there is no materials available in the prosecution records to incorporate offence under Section 3(2)(va) of the SC/ST Act though he did not argue on the other offences made out, prima facie, in the prosecution records. According to the learned counsel for the petitioners, the petitioners seek quashment of the proceedings alleging commission of offence punishable under Section 3(2)(va) of the SC/ST Act. 5. Strongly opposing the contention, the learned Public Prosecutor read out the statements of CW1, CW2, and CW6 to substantiate that the accused persons, who do not belong either to Scheduled Caste or Scheduled Tribe community, attacked the second witness knowing his tribal identity as a member of Hindu Pulaya community, which is a Scheduled Caste. Therefore, offence under Section 3(2)(va) of the SC/ST Act is made out, prima facie, and in such a case quashment of the said offence could not be considered. 6. On perusal of the prosecution records, in the statements of CW1, CW2 and CW6, the ingredients to attract offences punishable under Section 352, 294(b), 323 r/w 34 of IPC are well made out, prima facie, and therefore quashment sought for in relation to the said offences would not succeed, as even conceded by the learned counsel for the petitioners. However, the contention raised by the learned counsel for the petitioners to the effect that offence under Section 3(2)(va) is not made out for want of ingredients, to be addressed in view of the arguments and on scrutiny of the prosecution records in juxtaposition with the statutory phraseology in Section 3(2)(va) of the SC/ST Act. In this connection it is relevant to refer Section 3(2)(va) of the SC/ST Act which provides as under: “3. Punishments for offences of atrocities: (1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe: xxx xxx xxx (2) (va) commits any offence specified in the Schedule, against a person or property, knowing that such person is a member of a Scheduled Caste or Scheduled Tribe or such property belongs to such member, shall be punishable with such punishment as specified under the Indian Penal Code (45 0f 1860) for such offences and shall also be liable to fine. xxx xxx xxx” The object behind introduction of Section 3(2)(va) of the SC/ST with effect from 26.01.2016 is to punish a person, who is not a member of Schedule Caste or Scheduled Tribe Community, who commits offences specified in the schedule attached to the SC/ST Act knowing that such person is a member of a Schedule Caste or Schedule Tribe community. Therefore, the necessary ingredients to bring home an offence under Section 3(2)(va) of SC/ST Act is knowledge of the accused person regarding the caste and tribal identity of the victim, against whom the offences specified in the schedule are committed. Thus the sum and substance of Section 3(2)(va) postulates that whenever a person, who doesn't belong to Scheduled Caste or Scheduled Tribe community, commits an offence specified in the schedule (schedule contains certain offences under the IPC) attached to the SC/ST Act, knowing identity of the victim as a member of Scheduled Caste or Scheduled Tribe community that person commits an offence punishable under Section 3(2)(va) of SC/ST Act, for which penal consequence is such punishment as specified under the Indian Penal Code for such offences in the schedule and shall also be liable to fine. 7. In this connection it is relevant to read Section 8 of the SC/ST Act, dealing with ‘presumption as to offences’ where it has been provided that in a prosecution for an offence under this Chapter, if it is proved that: (a) the accused rendered any financial assistance in relation to the offences committed by a person accused of, or reasonably suspected of, committing, an offence under this Chapter, the Special Court shall presume, unless the contrary is proved, that such person had abetted the offence. (b) a group of persons committed an offence under this Chapter and if it is proved that the offence committed was a sequel to any existing dispute regarding land or any other matter, it shall be presumed that the offence was committed in furtherance of the common intention or in prosecution of the common object. (c) the accused was having personal knowledge of the victim or his family, the Court shall presume that the accused was aware of the caste or tribal identity of the victim, unless the contrary is proved. 8. (c) the accused was having personal knowledge of the victim or his family, the Court shall presume that the accused was aware of the caste or tribal identity of the victim, unless the contrary is proved. 8. Section 8(c) of the SC/ST Act would show that if the accused was having personal knowledge of the victim or his family, the Court shall presume that the accused was aware of the caste or tribal identity of the victim, unless the contrary is proved. Thus the knowledge of the accused regarding the victim’s caste or tribal identity is a matter for which presumption under Section 8(c) of the SC/ST Act would apply and the said presumption is rebuttable by adducing evidence. Keeping the law in the above line, when the statements of CW2 and CW6 are read, here the petitioners and the victim are known to each other, being residents of Pallikkara Punnathara East Kara. In the statements, the caste of the accused, who are not members of Scheduled Caste or Scheduled Tribe community, is disclosed and the caste of the second witness as a member of Hindu Pulaya community also disclosed. Therefore, the knowledge regarding the caste identity of the second witness is a matter of presumption and the accused has the right to rebut the same. But the procedure of rebuttal should have to be exercised during trial and the standard of proof in such reverse burden, indubitably is preponderance of probability. In view of the matter, the contention raised by the learned counsel for the petitioners that the petitioners did not commit any offence punishable under Section 3(2)(va) of the SC/ST Act could not be found, prima facie. The inevitable repercussion is that the ingredients to attract offences alleged by the prosecution are made out, prima facie, and in such case quashment of the case striking trial of the matter necessarily should fail. 9. Accordingly, this petition stands dismissed, keeping liberty of the petitioners to defend the case during trial as per law. 10. Registry shall forward a copy of this order to the jurisdictional court for information and further steps.