Partly allowed

Laxmi Prasad and Another v. State of Chhattisgarh

Chhattisgarh HC6 Mar 2012CRA/861/2005

Case brief

AI extract

What is this about?

The Court examined a challenge to a conviction for murder and atrocities committed against a deceased belonging to a Scheduled Caste. The Court upheld the conviction under Section 302 of the IPC but set aside the enhanced sentence under the SC/ST (POA) Act, 1989, holding that the death resulted from affray rather than an offence motivated by caste prejudice.

What did the court decide?

Conviction and sentence under Section 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 set aside. Conviction and sentence under Section 302 of the Indian P

Laxmi Prasad and Another Vs State of Chhattisgarh — Caste Atrocities | Chhattisgarh HC (2012)

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imprisonment for life and to pay fine of Rs.500/—, in default, to further undergo rigorous imprisonment for six months; respectiveiy. The sentence of imprisonment for life awarded for both the offences are directed to run concurrently. In case of default of payment of nne', the sentence of rigorous imprisonment awarded for both the offences are directed to run separately.

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Case of the prosecution, in brief, is as under:

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In the evening of 8-10-2003, Juganu (PW—3) informed deceased Bhagirathi Suryawanshi that paddy crop of his agricultural field is being grazed by buffalo of accused Laxmi. The deceased and his wife Budha Bai (PW-8) went to their agricultural field and urging on the buffalo, took it to the house of accused Laxmi. The deceased told accused Laxmi that his buffalo had grazed paddy crop of his agricultural field. Accused Laxmi asked the deceased to show his agricultural field. The deceased and his wife took accused Laxmi to their agricultural field and showed the grazed paddy crop. Accused Laxmi created a dispute and said that other’s cattle would have grazed the field. On account of the dispute, accused Laxmi pushed^{thedeceasedandassaultedhimwitha} Lathi. Wife of the deceased shouted. On this, accused persons Bharat, Shatruhan, Suresh and Ganesh Mahra also, armed with Lathi, came there^and began to assault the deceased. All the assailants, after committing Marpeet with the deceased, fled towards their houses. The wife of the deceased, screaming, went towards the Basti (inhabitation)^and narrated the incident to Dilharan, Shankar (PW-2), Laxman Yadav (PW-7) etc. Onthis, villagers, namely, Laxman Yadav (PW-7),

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3 Manharan (PW-9), Lakhan Lal (PW-11), Dev Prasad (PW-13), Saukhi Lal (PW-14)^etc_. went^tothespot, i.e., the agricultural^field. They took injured Bhagirathi (the^{deceased)outofthe} agricultural field. At that time, injured Bhagirathi^{hadsustainedinjuriesonhead,} cheek, nape, back etc. On being asked, injured Bhagirathi, groaning,^{toldthatMarpeethadbeencommittedbyaccusedLaxmi} etc. Injured Bhagirathi was taken to Medical College Hospital, Biiaspur for treatment, where the‘ doctor declared him dead. 'of Intimation regarding death the deceased was sent to Police Station City Kotwali, Bilaspur where Merg No.0/03 was recorded vide Ex.P-13. Lallan Pandey (PW—12), Assistant Sub-Inspector, Police Station City Kotwali, Bilaspur gave notice to Panchas^vide Ex.P-14 and prepared lnquest on the dead body of Bhagirathi Suryawanshi vide Ex.P-15. The dead body was sent for post mortem examination^{toMedicalCollegeHospital,BilaspurvideEx.P-} 16. Dr. Padmacharan Sahu (PW-18) conducted post mortem examination on dead body of the deceased. 3^Hegave his report «(EXP-28), in which he found (i)^{onelaceratedinjury,0.8cmx0.3cm} x bone deep^{onoutersideoflefteye,} (ii)^{bluishcontusion,8cmsx8} cms on left cheek in front^ofleftear, (iii)^{bluishcontusion,43cmsx} 12 cms on left side of neck starting^frommid line of part of^neck going^{uptonapeofneckon} left side, (iv)^{laceratedwound,4cmsx} 1.5 cms x bone^{deep,horizontally} present^onoccipit just^leftlateral to mid line, (v)^{laceratedwound,3.5cmsx0.5cmxbonedeepon} back of skull,^{2cmsaboveand0.5cmlefttoinjuryNo.(iv),(vi)bluish} contusion, 28^cmsx28cmson left side of back^{startingfromnape} going down towards left side of back, multiple obliquely^.placed

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abrasions were seen. He also found two other injuries. He opined that cause of death was combined effect of coma, shock and haemorrhage as a result of the above injuries.

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Police Station City Kotwali, Biiaspur informed the incident to Police Station Takhatpur. Police Station Takhatpur recorded Merg intimation vide EXP-19. Police Station Takhatpur registered the crime vide First Information Report (EXP-18).

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During investigation, Inspector Joseph Toppo (PW-16) prepared^site—map (EXP-20). Memorandum statements of accused persons^{Laxmi,Bharat,ShatruhanandSureshwererecorded} under Section 27 of the Evidence Act. Memorandum statement of accused Laxmi was recorded vide Ex.P-3 and at his instance, a bamboo was seized vide Ex.P-8. Memorandum statement of accused Bharat was recorded vide Ex.P—4 and at his instance‘ a Lathi was seized vide Ex.P-9. Memorandum statement of accused Shatruhan was recorded vide Ex.P-5 and at his instance, a bamboo was seized vide Ex.P-10. Memorandum statement of accused Suresh was recorded vide Ex.P—6 and at his instance, a Lathi was seized vide EXP-11. Lungi, Chaddi (undenlvear) and hair of the deceased were seized vide Ex.P-7. Seized Lathi were sent to CIMS, Bilaspur for examination vide EX.P-21. Patwari Dev Kumar Baghel (PW—6) prepared site-map of the place of occurrence vide Ex.P-12. The seized Lungi, Chaddi (underwear) and hair of the deceased were sent to Forensic Science Laboratory, Raipur for chemical examination and report (EXP-29) was received therefrom. During investigation, a certifibate (EXP-27), showing that the deceased belonged to Suryawanshi Caste, was obtained from Naib Tahsildar

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‘(PW—17). Jai Uraon Accused persons^were arrested vide arrest memo (EXP-23, P-24, P-25 and P-26). After completion of the investigation, charge sheet was tiled against the appellants and the acquitted accused persons in the Court of Judicial Magistrate First Class, Bilaspur, who, in turn, committed the case to the Court of Special Judge under the Act, 1989, Bilaspur. The learned Special Judge conducted the trial and convicted and sentenced the appellants as mentioned above and acquitted the remaining two accused persons Bharat and Shatruhan.‘

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The learned Special Judge framed charges against the appellants and the acquitted accused persons under Sections 147, 148, 302 read with Section 1490f the Indian Penal Code and Section 3(2)(v) of the Act, 1989. They abjured the guilt.

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in order to bring home the guilt against the appellants and the acquitted accused persons, the prosecution examined Ram Kumar (PW—1),^Shankar (PW-2),^Juganu (PW-3),^{RaghubarDasVaishnav} (PW-4),^KamtaPrasad (PW-5),^{DevKumarBaghel} (PW-6),^Laxman Yadav (PW-7), Budha Bai (PW-8), Manharan (PW-9), Dinesh Kumar Tomar (PW-10), Lakhan Lal (PW-11), Lallan Pandey (PW-12), Dev Prasad (PW-13), Saukhi Lal (PW—14), Gandhi Ram. Banjare (PW15), Joseph Toppo (PW-16), Jai Uraon (PW—17) and Dr. Padmacharan Sahu (PW-18). Statements of the appellants and the acquitted accused persons were recorded under Section 313 Cr.P.C. in which they pleaded innocence and false implication. ln defence, they examined Smt. Anuradha Pav (DW-1) and Jivrakhan

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(ow—2)., \

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Ms. Sangeeta Mishra, learned counsel for the appellants argued that there is no independent eye-witness. Budha Bai (PW—8) is widow of the deceased. She is a relative and highly interested witness. Her presence at the place of occurrence is highly suspicious“ Her evidence is contradictory. The deceased was unconscious and he was not in a position to speak or narrate anything about the occurrence to anyone. Therefore, the evidence of oral dying declaration is not reliable. The prosecution did not adduce any evidence to prove commission of offence under Section 3(2)(v) of the Act, 1989. Mere fact that the deceased belonged to Scheduled Caste does not attract the provisions of the Act, 1989. The findings recorded by the learned Special Judge for convicting the appellants under Section 302 IPC and Section 3(2)(v) of the Act, 1989 are unsustainable and the appellants deserve to be acquitted.

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Alternatively, learned counsel argued that the act of the appellants would not be punishable under Section 302 IPC and even after admitting the entire case of the prosecution, the appellants would be liable for punishment for some lesser offence probably under Section 304 Part ii IPC. She placed reliance on Baijnath vs. State of Uttar Pradesh, (2008)^3SCC (Cri)^{940,Shankarlal} vs. State of Rajasthan, (2004) 1O SQC 632, State of U.P. vs. Dharamraj and another, (2003) 9 SCC 39 and Gyan Singh and another vs. State of C'.G., 2007 (3) CGLJ 359 (DB).

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Shri Neeraj Mehta, learned Panel Lawyer for the State/respondent, supporting the impugned judgment, submitted that

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ln Muthu Naicker^{andors.vs.StateofTamilNadu,} AIR 1978 SC 1.647, this Coun explained the aforesaid judgment^bystating that in a situation where^awitness has been attacked by the members of an unlawful assembly composed of a Iarge number of persons, the Court should carefully consider the question of the credibility of^{suchawitness.} Where'the Court is of the view that^{thetestimonyofsuchawitness} is in the facts and circumstances^{ofthecasenotreliable,} it should insist that such testimony^{becorroboratedbyoneormoreother} witness before^{itcanbeacceptedbytheCourt.}

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“There is no rule of evidence that no conviction can be based unless a certain minimum number of witnesses have identified a particular accused as^{amemberoftheunlawfulassembly.} It is axiomatic that^evidence is not to be^{countedbutonly} weighed and it is not the quantity^{ofevidencebutthe} Even the testimony^ofonesingle quality^thatmatters. witness, if Wholly reliable, is sufficient^{toestablishthe} identification^{ofanaccusedasamemberofanunlawful} assembly. All the same^whenthesize of^theunlawful assembly is quite large (as in this case) and many gersons^{wouldhavewitnessedtheincident} 1’

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In Takdir Samsuddin Sheikh vs. State of Gujarat and another, AIR^{2012SC37,theHon’bleSupremeCourtobservedas}

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follows:

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“1 0.

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xxxxx xxxxx xxxxx xxxxx xxxxx XXXXX

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(i) xxxxx xxxxx XXXXX This Court^{hasconsistentlyheldthatasageneral} (ii) rule the Court can andqmay^acton the testimony of a witness provided^{heiswhollyreliable.} There is no

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legal impediment in convicting a person on the soie testimony^{ofasinglewitness.} That is the^{logicofSection} 134 of the Evidence^Act, 1872. But if there are^doubts about the^{testimony,thecourtwillinsistoncorroboration.} ln fact, it is not the^number,the quantity,^{butthequality} that is material. The time-honoured orinciple is that evidence^{hastobeweighedandnotcounted.} The test^is whether the evidence has a ring of truth, is cogent, credible and^{trustworthyorotherwise.} The legal^system has laid emphasis on value, weight and quality of evidence^ratherthanon quantity,^{multiplicityorpluralityof} witnesses. lt is, therefore,^{opentoacompetentcourtto} fully and^{completelyrelyonasolitarywitnessandrecord} conviction. Conversely,^{itmayacquittheaccusedinspite} of testimony of several witnesses if it is not satisfied about the quality^{ofevidence.”}

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it _

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ln Namdeo^{vs.StateofMaharashtra,(2007)14SCC} 150, the Hon’ble^{SupremeCourtheld} that it is the quality^andnotthe quantity^{ofevidencewhichisnecessaryforprovingordisprovinga} fact. lt is clear that^{lndianlegalsystemdoesnotinsistonpluralityof} witnesses. Neither the legislature (Section^{134oftheEvidenceAct,} 1872) nor the judiciary^mandates that there must be a particular number^ofwitnesses to record^an order of conviction against^the accused. Our legal system has always laid emphasis on value, weight and quality^{ofevidenceratherthanonquantity,multiplicityor} It is, therefore,^{opentoacompetentCourtto} plurality^ofwitnesses. fully and^{completelyrelyonasolitarywitnessandrecordconviction.}

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Evidence^{of RelativeandInterestedWitness:}

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1.1 ln Dharnidhar vs. State of Uttar Pradesh and others, (2010)^{7SCC759,theHon’bleSupremeCourtheldasfollows:}

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“12. There is no hard-and-fast rule that family^members can never be true witnesses^{totheoccurrenceandthat} they will always depose falsely before^theCourt. It wiH always depend upon the facts and circumstances of a given^case. In Jayabalan v. UT of Pondicherry, (2010) 1 SCC 199, this Court had occasion to consider whether the evidence of interested^{witnessescanbereliedupon.} The Court took the view that a pedantic^{approachcannot} be applied while .dealing with the evidence of an interested witness. Such evidence cannot^beignoredor thrown out solely because it comes from a person closely related to the victim.

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Similar view was taken by this Court in Ram Bharosey v. State of^U.P., (2010) 1 SCC 722, where the Court stated the dictum^{ofIawthatacloserelativeofthe} deceased does not, per se, become an interested witness. An interested witness^{isonewhoisinterestedin} securing the conviction of^a person^{outofvengeanceor} enmity or due to disputes^{anddeposesbeforethecourt} only with that intention and not to further the cause of justice. The Iaw relating to appreciation^{ofevidenceofan} interested witness is well^{settled,accordingtowhich,the} version of an interested witness cannot be thrown overboard, but has to be examined carefully before accepting the same.”

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In Brahm Swaroop and another^{vs.StateofU.P.,AIR2011}

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In Brahm Swaroop and another^vs.Stateof SC 280, the Hon’ble Supreme^{Courtheldasfollows:}

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“21. Merely because the witnesses were closely related to the deceased persons, their testimonies cannot be discarded. Their relationship to one of the parties is not a factor that effects the credibility of a witness, moreso, a relation^{wouldnotconcealtheactual} culprit and make allegations against an innocent

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person. A party has to‘ lay down a factual foundation and prove by Ieading impeccable evidence in respect of its false implication. However, in such cases, the court .has to adopt a careful approach and analyse the evidence to find out whether it is cogent and credible evidence.

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In Waman and others vs. State of Maharashtra, (2011)⁷ SCC 295, the Hon’bie Supreme Court held as follows:

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“17. ln Balraje v. State of Maharashtra, (2010)^6SCC 673, this Court held that the mere fact that the witnesses were related to the deceased cannot be a ground to discard their evidence. lt was further held that when the eyewitnesses are stated to be interested and inimically disposed towards the accused, it has to be noted that it would not be proper to conclude that they would shield the real culprit and rope in innocent persons. The truth or otherwise of the evidence has to be weighed pragmatically^{andthecourtwouldberequiredtoanalyse} the evidence of related witnesses and those witnesses who are inimically disposed towards the accused. ...... 19. .....“29. The evidence of a witness cannot be discarded solely on the ground of his relationship with the victim of the offence. The plea relating to relatives’ evidence remains without any substance in case the evidence has credence and it can be relied upon. In such a case the defence has to lay foundation if plea of false implication is made and the court has to analyse the evidence of related witnesses carefully to find out whether it is cogent and credible. (Vide^{JarnailSinghv.} State of Punjab, (2009)^9SCC 719, Vishnu v. State of Rajasth'an, (2009) 10 SCC 477 and Ba/raje, (2010).6 scc 673.)"

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Now, in light 6f the above principles^{laiddownbytheHon’ble} Supreme^{Court,weshallexaminetheevidenceofBudhaBai(PW-} 8).

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.J’<br>

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Budha Bai (PW-'8)^deposed that she belongs to Kannaujia Suryawanshi Caste. Accused persons are members of Mahara Caste. On the date of incident, in the evening hours, they were present^{intheirhouse.} At’that time, son of^{Ganga,namely,Juganu} (PW-3)^{cametotheirhouseandtoldthatbuffaloofaccusedLaxmi} had entered their agricultural field. Her husband (the deceased) went towards their^field. She also went^behindhim. They went to the house of accused Laxmi and told him that his buffalo was ‘ grazing^{theiragriculturalfield.} Accused Laxmi asked^themaboutthe place^{wherethebuffalograzed} in the agricultural^{fieldandwentto} their field. Her husband was going^{ahead,accusedLaxmi,whowas} armed with a^Lathi,was going^{behindhimandshewas} going^behind accused Laxmi. Accused Laxmi was abusing her husband. Her husband said accused Laxmi that his buffalo is grazing their agricultural field daily. They reached the agricultural field. She stood up to one side. At the same time,^{accusedLaxmiassaulted} her husband on the^{backofhisheadwiththeLathi.} He also gave two Lathi blows on^{theheadofherhusband.} Thereafter, accused - Suresh (cousin (son^{ofsister)ofaccusedLaxmi),whowas} present before the Court on the date Of her deposition, came there and assaulted on^{theneckofherhusbandwithaLathi.} Accused Suresh also gave Lathi^{blowsonthehands,legsandWaistofherhusband.} He assaulted^onmany parts^ofthebody. Neck of her husband^had

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day but depésed that it was getting about 6:45 P.M.; the deceased came to the house of accused Laxmi^{andsaidhimthathisbuffalo} was grazing the crop of his agricultural field. On the same day, at about 7:30 P.M., he came to know that^{thedeceasedhaddied.} He further deposed that he heard the news of death in the‘ morning. Budha Bai (PW-8)^was going^from her house towards agricuitural field. When he asked her what happened, she^{toldhimthataccused} Laxmi had killed the deceased.

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Laxman Yadav (PW—7) deposed that^{buffaloofaccusedLaxmi} had entered the agricultural field^{ofthedeceased.} The buffalo was taken to Kanji House by the^deceased. The accused requested^not to take the buffalo to the^{KanjiHouseandhewasreadyto} pay^tine. Reputed villagers decided in a^{meetingtoimposefineofRs.100/—on} the accused and the fine^{ofRs.100/—wasrealizedfromtheaccused.} After 2-3 days of this incident, at about 6 P.M., Budha^Bai (PW—8), weeping, came from the shop of Dilharan. At that time, he was present^{inthelaneofhishouse.} It was raining a little. Budha Bai (PW-8),^{weeping,cameandsaidthatherhusbandhadbeen} killed ‘ by accused persons Laxmi^andSuresh. 19. Shankar (PW-2) deposed that the incident took place on Wednesday. At about 6:30^— 7:00 P.M.,^hewas going^tothe grocery ' shop of Dilharan to purchase things. Budha Bai (PW-8), screaming, came from the agricultural^{fieldandshoutedthatincidenthadtaken} place. She said that her husband^{hadbeenassaulted.}

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Dr. Padmacharan Sahu (PW—18),^whoconducted post^mortem on dead body of the deceased,^{foundnearabout8} injuries on the

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true and voluntary it can be sufficient to found the conviction even without any further corroboration.

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In Meharban Singh and others vs. State of Madhya Pradesh, AIR 2002 SC 299, the Hon’ble Supreme Court has held

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thus:

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“7. l It is important to note that the witnesses not only reached the piace of incident but also took steps to take the deceased in a bullock cart to the nearby hospital and this shows that deceased Halkiya must^havebeen alive at that time. While the injured was being taken in the bullock cart, on the way he died and^{thereafterthe} dead body was directly taken to the Police Station. There, the First Information Repon was lodged and in the FIR, it is mentioned that dead body of Halkiya was in the Police Station. The evidence of PW1 to PW3, coupled with the medical evidence and other surrounding circumstances convincingly proved^that'the dying declaration given by the deceased must have been true and the Sessions Court as^{wellastheHigh} Court was very careful in accepting this dying declaration and wherever there was any doubt as to^the involvement of some of the accused, the Court granted the benefit thereof and acquitted^{thoseaccused.} The names of the appellants were disclosed by the deceased to three witnesses who gave their^evidence before the Court and the two Courts accepted that evidence and did not tind any infirmity or miscarriage^of justice in this case. The appeal is without any merits and is dismissed accordingly.”

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In Vishram and others vs. State of^{MadhyaPradesh,AIR} 1993 SC 250, the Hon’ble Supreme Court has held thus:

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“5. ....... P.W.1 in the first information report itself has mentioned about the^{earlierdyingdeclarationand} has also given the necessary details. Nothing significant has been elicited in his cross-examination. Likewise, P.W.5 deposed that she also reached the place^{ofoccurrenceandfoundChandraShekharlying} unconscious and that^{herhusbandKamalKishorewas} conscious and on being^{asked,hetoldherthatthesix} appellants attached him and beat him. Thereafter Kamal Kishore^{wastakentothehospital.} ..

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ln Prakash and another^{vs.StateofMadhyaPradesh,AIR} 1993 SC 65, the^{Hon’bleSupremeCourthasheldthus:}

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“11. ...... In the ordinary course,^{themembersofthe} family including the father were expected to ask the victim the names^{oftheassailantsatthefirstopportunity} and if the victim was in a position^{tocommunicate,} it is reasonably expected that he would give^thenamesof the assailants if he had recognized^the assailants. In the instant case there is no occasion to hold that the deceased was^notina position^{toidentifytheassailants} because it is nobody’s case^{thatthedeceaseddidnot} know the accused persons. lt is therefore quite likely that on being asked the deceased would name th e assailants. .......

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Laxman Yadav (PW-7)^deposed that Budha Bai (PW-8), weeping, came and said that her husband had been kiledl by accused persons^{LaxmiandSuresh.} He further deposed^thatafter sometime, he and his brother Lakhan (PW—11)^{wenttowardsthe} agricultural tield to see the deceased. When they reached there, they saw that^Shankar (PW-2), Manharan (PW-9)^andBudha Bai (PW-8) I were present there. The deceased was lying in the Va

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agricultural fleld. He asked Budha Bai (PW—8)^{abouttheassailant.} She told names of accused persons Laxmi and Suresh as assailants. She urged that these assailants^{themselvesassaulted} the deceased. At that time, the deceased^{wasaliveandtalking.} He asked the deceased about the name of the assailant. He told names of accused persons^{LaxmiandSuresha'sassailants.} He told that they had assaulted him^withLathi.

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f/z‘

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‘27. Manharan (PW—9)^deposed that on the date of incident, at about 6:30 P.M.,^theywere present^{attheshopofoneSahu.} Budha Bai (PW-8) came from^{Bhathaandscreamedthatassaulthadtaken} place. He and Shankar (PW-2)^{wenttotheagriculturalfieldalong} with Budha Bai (PW-8). The deceased was^lying in the agricultural field. At that time, he was alive. When he asked, the deceased^told him that accused Laxmi^{hadassaultedhim.}

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Lakhan Lal (PW-11) deposed^{thatonthedateofincident,at} about 7 P.M‘., he was present^inhishouse. Budha Bai (PW-8),^wife of the deceased,^{screaming,cameandsaidthatherhusbandhad} been killed. He went behind her. He saw that the deceased^was lying in the agricultural^{fieldofBharariya.} Injuries were present^on his head and neck. Family members of the^deceasedhad picked^up the deceased and took him to his house. When the deceased became conscious,^{onbeingasked,hetoldthataccusedLaxmiand} others had assaulted^him.

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in 29. Dev Prasad (PW-13)^{deposedthatonthedate} of^incident, the evening hours,^hewas present^inhishouse. Budha Bai (PW—8), shouting, came and said that her husband had been killed. Her

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husband had been assaulted^{byaccusedLaxmi.} Theyr went to the agricultural field. He saw that the deceased was Iying in the agricultural field. The deceased had sustained^{injuriesonnapeand} back. On being asked, the deceased^{toldthataccusedLaxmihad} assaulted him. He further deposed that^{thedeceasedwas} picked^up and took to the^house. Villagers took the deceased^{toBilaspurfor} his treatment.

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Learned counsel for the^{appellantsarguedthatthedeceased} had sustained head injuries and he was not in a position to make any statement. In view of the above evidence^ofBudhaBai (PW-8), Laxman Yadav (PW—7),^LakhanLal (PW-11)^andDevPrasad (PW13), the argument advanced^{bylearnedcounselfortheappellantsis} ‘ not acceptable.

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Dr. Padmacharan Sahu (PW-18) deposed in paragraph 15 that he was unable to^{statethatthedeceasedbecameunconscious} due to injuries sustained^onthehead. Looking to the evidence^of Laxman Yadav (PW-7) in paragraphs 12 and 13, it appears that when Laxman Yadav (PW-7)^andLakhan Lal (PW-1 1) reached^the place of occurrence, at that time, the deceased was conscious. Manharan (PW-9)^deposed that it is wrong to say that when he reached the place of occurrence, at that time, the deceased^was unconscious. It is also wrong to say^{thatthedeceaseddidnottell} him anything. Therefore, it is evident that when^{theabovewitnesses} reached the place of occurrence, at that time, the deceased was conscious and^{wasabletomakestatement.}

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From the above, we find that the evidence of oral dying declaration Ied by the prosecution in the instant case is reiiable, admissible in evidence and can be based for conviction of the appellants.

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The prosecution has come up with a definite case that the offence was committed by^{theappellantsandthe} prosecution^has proved^{itscasebeyondall-reasonabledoubt.} 34. We have carefully examined^{theevidenceofBudhaBai} (PW8). Her evidence is corroborated by oral dying declaration of the deceased made before^LaxmanYadav (PW-7),^Manharan (PW—9), Lakhan Lal (PW—1 1) and^DevPrasad (PW-13)^{andalsocorroborated} by medical evidence. From the evidence of^{thesewitnesses,} it is crystal clear that they were the appellants who assaulted the deceased with^{Lathiandcauseofdeathofthedeceasedwascoma} and shock as a result of^{theinjuriessustainedbyhim.} Therefore, we do not find any infirmity in the finding recorded by the learned Special Judge that the appellants committed murder of the deceased.

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Now, we shall examine whether the appellants committed murder of the deceased^onthe ground that he was a member^of Scheduled Castes?

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Clause (v) of sub-section (2)^{ofSection‘3oftheAct,1989runs} thus:

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“3. Punishments for offences^{ofatrocities.—} (1) xxxxx xxxxx xxxxx

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is culpab|e homicide^notamounting to murder, that means, where there is knowledge^{thatdeathwillbeaIikelyresult,buttheintention} to cause death, or bodily^{injuryiikelytocausedeath,} is absent. The first part of Section 304 of the Indian Penal Code applies where there is intention, whereas^thesecond part^{applieswherethere} is knowledge but the^{importantthingisthatbeforeholdingtheaccused} guilty^{underanypartofSection304oftheIndianPenalCode,} it has to be observed^{thatadeathmusthavebeencausedbyhimunder} any of the circumstances^{mentionedinthehveExceptionstoSection} 300 of the Indian Penal Code, which include death caused while deprived of power of self-control under grave and sudden provocation, while exercising in good faith the right of private defence of person^or property,^and in a sudden tight^intheheatof passion^{withoutpremeditation.Knowledge} of consequences^which may result in^doinganactis quite^{differentthantheintentionwhich} ‘ denotes that a particular consequence should ensure. For attracting the former part of^{Section304oftheIndianPenalCode,anelement} of intention is a factor whereas for attracting the later part, an of kn'oWIedge is a factor. The intention is the purposeful element doing of a thing to achieve a particular result, whereas, the knowledge is^{anawarenesswhichattributestobewellinformedthat} a particular result^{mayhappenbydoingathing.} 40. In the instant case,^{thedisputearosebetweenthedeceased} and the accused persons^{onaccountofgrazing} of paddy crop^of agricultural field of the deceased^{bythebuffaloofaccused} Laxmi. The appellants had strong feeling of annoyance against the due to a complaint made by him regarding grazing of wed‘ / 2‘3/

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paddy^crop of his agricultural field. The appellants assaulted the deceased and gave him Lathi blow on his head and nearabout 8 injuries were found on the body of the deceased. The injuries, which the deceased suffered, clearly shows that the Lathi was used^bythe appellants with a considerable force and the injuries^werecausedon the vital parts of the body of the deceased. The nature of the weapon used by the appellants, the manner^{inwhichtheyassauited} the deceased, severity of the blows they^{deaitagainstthedeceased} and the parts of the body which they^seiectedfor giving^suchblows would show that they had an intention to commit murder of the deceased. We are of the considered opinion that in the facts and circumstances of the case, the act^{oftheappellantswould} not be falling under any exception to Section^{300oftheIndianPenalCode} and the present cannot be said to be culpable homicide not amounting to murder.

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For the foregoing reasons, the conviction and sentence awarded to the appellants under Section 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 are set aside, but the conviction and sentence awarded to

¶102

them under Section 302 of the^{IndianPenalCodeareaffirmed.}

¶103

Gopal

¶104

SUNIL KUMARSd/— SINHA ‘ll. ‘sli RS. SHARMASdl— i’m‘”‘: .,.'t- J
Judge . Judge
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Laxmi Prasad and Another v. State of Chhattisgarh

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Laxmi Prasad and Another v. State of Chhattisgarh

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