Ramji @ Sonu Dadsena Vs State of Chhattisgarh

appellant No.2 Puneet Dadsena have jointly preferred this appeal under Section 374(2) of CrPC calling in question the legality, validity and correctness of the judgment of conviction and order of sentence dated 23.08.2019, passed in Special Criminal Case (Atrocity Act) No. 35/2018, by the Special Judge [Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act], Raigarh, (CG), whereby the appellants have been convicted and sentenced as under:

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Conviction	S	enten	ce
U/s. 302/34 of IPC	Imprisonme of Rs.3,00 payment of for 2years.	nt for 0, in fine,	life with fine default of additional R.I.
U/s. 3(2)(v) of the SC/ST (POA) Act	R.I. for 10 Rs.2,000/-, payment of for 2years.	years in fine,	with fine of default of additional R.I.
U/s. 449 of IPC	R.I. for 10 Rs.2,000/-, payment of for 2years.	years in fine,	with fine of default of additional R.I.

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[All the sentences are directed to run concurrently ]

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2. During the pendency of this appeal, Appellant No.2 Puneet Dadsena died, therefore, the appeal in respect of Appellant No.2 Puneet Dadsena stands abated. Now, the appeal, in so far as it relates to appellant No.1 Ramji @ Sonu Dadsena, is being decided by this judgment.

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3. The case of the prosecution, in brief, is that on 09.05.2018 at about 10:00 pm, the appellants herein, knowing fully well that deceased Ramcharan Bhoi belongs to Scheduled Tribe community trespassed his house and in furtherance of their common intention, assaulted him with stick & brick, due to which Ramcharan Bhoi suffered grievous injuries and died. When the wife and son of the deceased namely Tebha Bai

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(PW-8) and Deepak Bhoi (PW-5) tried to intervene, the appellants also caused injuries to them, thereby the offence has been committed. The matter was reported to Police Station Baramkela by Madan Binjhwar (PW-1), pursuant to which Merg (Ex.P-4) was recorded and FIR (Ex. P-1) was registered. Inquest was conducted vide Ex. P-3 and the dead body of deceased Ramcharan Bhoi was subjected to postmortem which was conducted jointly by Dr. Awadhesh Panigrahi and Dr. Sanjay Patel. As per postmortem report (Ex.P/13), cause of death was opined to be excessive hemorrhage leading to hypovolemic shock which was caused by polytrauma & multiple fractures on the body and death was homicidal in nature. Pursuant to memorandum statement of appellant No.2 (Ex.P-6), the weapon of offence i.e. stick was seized vide Ex. P-8 but the same has not been sent to FSL for chemical examination, for the reason best known to the prosecution. The brick was seized from the spot vide Ex.P-7 which was sent for chemical examination to FSL along with other articles and as per the FSL report Ex.P28, human blood was found on the said brick and the T- shirt of appellant No.1. After completion of investigation, the appellants were charge-sheeted for the aforesaid offence in the competent criminal Court having jurisdiction, which was thereafter committed to the Court of Sessions for hearing and trial in accordance with law.

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4. The prosecution in order to prove its case examined as many as 14 witnesses and exhibited 33 documents, apart from Article-A/1. Statements of the accused/appellants were recorded under Section 313 of CrPC, in which they denied the circumstances appearing against them in the evidence brought on record by the prosecution, pleaded innocence and false implication. The appellants in support of their

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defence, though not examined any witness, but exhibited 02 documents.

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5. Learned trial Court, after appreciating the oral and documentary evidence available on record, convicted and sentenced the appellants as mentioned in the opening paragraph of the judgment, against which this appeal has been preferred by the appellants questioning the impugned judgment of conviction and order of sentence.

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6. Smt. Indira Tripathi, learned counsel for the appellants would submit that the prosecution has not been able to bring home the offence under section 302/34 of IPC beyond reasonable doubt. She submits that if the case of prosecution is taken as it is, it would be a case, at the most, of commission of offence under Section 304 Part-II of IPC as the appellants had no intention to cause death of Ramcharan Bhoi and on account of dispute regarding boundary wall of courtyard, on the spur of moment and in a heat of passion, the appellants caused the death of Ramcharan Bhoi. As such, the conviction of appellant No.1 for offence under Section 302/34 of I.P.C. be converted to Section 304 Part-II of I.P.C. and he be sentenced for the period already undergone, as he is in jail since 11.05.2018 i.e. more than 6 ½ years. Learned counsel for appellants submits that the appellants have not committed any offence knowing fully well that the deceased belongs to Scheduled Tribe community as the appellant and the deceased are neighbours of each other, therefore the conviction under Section 3 (2) (v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short “the Act of 1989”) is liable to be set aside. Hence, the present appeal deserves to be allowed.

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7. Per-contra , Shri Sharad Mishra, learned State counsel would submit that prosecution has been able to prove the offence beyond reasonable doubt by leading evidence of clinching nature. It is further submitted on behalf of the respondentState that in view of statements of the wife and son of the deceased namely Smt. Tebha Bai (PW-8) and Deepak Bhoy (PW-5), coupled with other evidence available on record, the trial Court has rightly convicted the appellants for the offence mentioned hereinabove and it is not a case where sentence of appellant No.1 can be converted or reduced to any extent. Thus, the present appeal is liable to be dismissed.

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8. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection.

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9. We will consider the argument of learned counsel for the appellant with regard to offence under Section 302/34 of IPC first and thereafter, the offences under Section 449 of IPC and 3(2)(v) of the Act of 1989.

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10. The conviction of appellants for offence under Section 302/34 of IPC is based on the testimony of two injured witnesses Tebha Bai (PW-8) and Deepak Bhoi (PW-5) who are the wife and son of the deceased. There is no dispute that the appellants and the deceased were neighbours and there was a dispute regarding the boundary of their courtyards which were also connected. On the date of incident, both the parties were disputing over the boundary of their courtyards and the appellants entered the house of deceased Ramcharan Bhoi and assaulted him with stick and brick, due to which, he suffered grievous injuries and died. Considering the testimony of two injured witness Tebha Bai

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(PW-8) and Deepak Bhoi (PW-5) who are the wife and son of the deceased and further considering that as per the FSL report Ex.P-28, human blood was found on the T-shirt of appellant No.1, we are of the considered opinion that the finding recorded by the trial Court for convicting appellant No.1 for offence under Section 302/34 of IPC is based on the evidence available on record and we do not find any illegality or perversity in the same. Accordingly, we hereby affirm the said finding.

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11. Now, the question would be whether the case of appellant No.1 would fall under Exception 4 to Section 300 of I.P.C. and, as such, his conviction under Section 302/34 of I.P.C. can be altered to Section 304 Part-II of I.P.C., as contended by learned counsel for the appellant ?

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12. The Supreme Court in the matter of Arjun v. State of Chhattisgarh 1 has elaborately dealt with the issue and observed in paragraphs 20 and 21, which reads as under :-

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“20. To invoke this Exception 4, the requirements that are to be fulfilled have been laid down by this Court in Surinder Kumar v. UT, Chandigarh [(1989) 2 SCC 217 : 1989 SCC (Cri) 348], it has been explained as under :(SCC p. 220, para 7)

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“7. To invoke this exception four requirements must be satisfied, namely, (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted

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(2017) 3 SCC 247

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in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly.”

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Further in Arumugam v. State [(2008) 15 SCC 590 : (2009) 3 SCC (Cri) 1130], in support of the proposition of law that under what circumstances Exception 4 to Section 300 IPC can be invoked if death is caused, it has been explained as under : (SCC p. 596, para 9)

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“9. …. '18. The help of exception 4 can be invoked if death is caused (a) without premeditation; (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the “fight” occurring in Exception 4 to Section 300 IPC is not defined in the Penal Code, 1860. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties had worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two or more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that

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the offender has not taken undue advantage or acted in cruel or unusual manner. The expression “undue advantage” as used in the provisions means “unfair advantage”.

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13. In the matter of Arjun (supra), the Supreme Court has held that when and if there is intent and knowledge, the same would be case of Section 304 Part-I IPC and if it is only a case of knowledge and not the intention to cause murder and bodily injury, then same would be a case of Section 304 Part-II IPC.

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14. Reverting to the facts of the present case, in light of the aforesaid principles of law laid down by their Lordships of the Supreme Court, it is quite vivid that there was no premeditation on the part of the appellants to cause death. It is also vivid from the statements of Tebha Bai (PW-8) and Deepak Bhoi (PW-5) that there was a dispute regarding the boundary of their courtyard. On the date of incident also, there was a hot talk on the said issue between appellants and the deceased party and on the spur of moment and in a heat of passion, the appellants assaulted deceased Ramcharan Bhoi with stick and brick which resulted in his death. Though there was no premeditation and intention on the part of appellant to cause death, but the appellant must have had knowledge that the injury caused by them is likely to cause death and, as such, the case of appellant No.1 would fall under Exception 4 to Section 300 of I.P.C.

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15. In that view of the matter, the conviction of appellant No.1 Ramji @ Sonju Dadsena for offence punishable under Section 302/34 of I.P.C. is converted/altered to Section 304 Part-II/34 of I.P.C. and he is sentenced to 10 years rigorous imprisonment. However, the fine amount and its default

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stipulation imposed by learned trial Court shall remain intact. Further, considering the entire facts and circumstances of the case, the nature of injury and the statements of the injured witnesses Tebha Bai (PW-8) and Deepak Bhoi (PW-5), the conviction of appellant No.1 for offence under Section 449 of IPC is hereby maintained, however, the sentence of R.I. for 10 years as imposed upon him by the trial Court under Section 449 of IPC is reduced to R.I. for 5 years. However, the fine amount and its default stipulation shall remain intact.

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16. Now, the question would be whether learned trial Court is justified in convicting Appellant No.1 for offence under Section 3(2)(v) of the Act of 1989, for which, he has been sentenced for rigorous imprisonment for 10 years, as contended by learned counsel for the appellant ?

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17. In order to answer this plea, it would be relevant to take note of the fact that the date of incident in the instant case is 09.05.2018, whereas Section 3(2)(v) of the Act of 1989 was amendment w.e.f. 26.01.2016 by Act 1 of 2016. Prior to its amendment w.e.f. 26.01.2016, Section 3(2)(v) stood as under:

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“ 3. Punishment for offences of atrocities -

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(1) xxx xxx

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(2) Whoever, not being a member of a Scheduled Caste or Scheduled Tribe -

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(i) to (iv) xxx xxx

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(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

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property belongs to such member, shall be punishable with imprisonment for life and with fine;”

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Prior to its amendment w.e.f. 26.01.2016, the unamended

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portion of Section 3(2)(v) was:

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“ on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member ”

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After the amendment, the substituted portion of Section 3(2)(v) is:

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“ knowing that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member. ”

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18. The unamended provision of Section 3(2)(v) of the Act of 1989 came to be considered before the Supreme Court in the 2 matter of Patan Jaman Vali v. State of Andhra Pradesh wherein their Lordships have held that it has to be established by the prosecution on the basis of evidence adduced that the accused has committed sexual intercourse/crime on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe community and held as under: -

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“ 58. ….We agree with the Sessions Judge that the prosecution's case would not fail merely because PW1 did not mention in her statement to the police that the offence was committed against her daughter because she was a Scheduled Caste woman. However, there is no separate evidence led by the prosecution to show that the accused committed the offence on the basis of the caste identity of PW2. While it

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2 R 2021 SC 2190

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would be reasonable to presume that the accused knew the caste of PW2 since village communities are tightly knit and the accused was also an acquaintance of PW2's family, the knowledge by itself cannot be said to be the basis of the commission of offence, having regard to the language of Section 3(2)(v) as it stood at the time when the offence in the present case was committed. As we have discussed above, due to the inter-sectional nature of oppression PW2 faces, it becomes difficult to establish what led to the commission of the offence – whether it was her caste, gender or disability. This highlights the limitation of a provision where causation of a wrongful act arises from a single ground or what we refer to as the single axis model.

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59. It is pertinent to mention that Section 3(2) (v) was amended by the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015, which came into effect on 26 January 2016. The words “on the ground of” under Section 3(2)(v) have been substituted with “knowing that such person is a member of a Scheduled Caste or Scheduled Tribe”. This has decreased the threshold of proving that a crime was committed on the basis of the caste identity to a threshold where mere knowledge is sufficient to sustain a conviction… 60. xxx xxx xxx

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61. However, since Section 3(2)(v) was amended and Clause (c) of Section 8 was inserted by Act 1 of 2016 with effect from 26 January 2016 these amendments would not be applicable to the case at hand. The offence in the present case has taken place before the amendment, on 31 March 2011. Therefore, we hold that the evidence in the present case does not establish that the offence in the present case was committed on the ground that such person is a member of a SC or ST. The conviction under

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Section 3(2)(v) would consequently have to be set aside. ”

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19. After the amendment to the provision of Section 3(2)(v) of the Act of 1989, the wording of the substituted portion is “ knowing that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member ”. The word “knowing” has been defined in the Black’s Law Dictionary, Eighth Edition, Page 888, — “1. Having or showing awareness or understanding; wellinformed. 2. Deliberate; conscious".

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20. In the matter of Shashikant Sharma & Ors. v. State of Uttar Pradesh & Anr.3 , Section 3(2)(v) of the Act of 1989 came to be considered before their Lordships of the Supreme Court, wherein it has been held that in order to commit offence punishable under Section 3(2)(v) of the Act of 1989 (as amended), there must be allegation that the accused not being a member of Scheduled Caste or Scheduled Tribe committed an offence under the provision of IPC punishable with imprisonment for 10 years or more on a member of Scheduled Caste or Scheduled Tribe knowing that such person belongs to the said community.

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21. Bearing in mind the aforesaid principle of law laid down by their Lordships of the Supreme Court qua Section 3(2)(v) (as amended w.e.f. 26.01.2016), it is quite vivid that from the entire material available on record, it is evident that no legally admissible evidence has been led to prove that appellants have caused the death of Ramcharan Bhoi knowing fully well that he belongs to Scheduled Caste/Scheduled Tribe community. Section 3(2)(v) of the Act of 1989 (as amended) can be pressed into service only if it is

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3 23 SCC Online SC 1599 I

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proved beyond reasonable doubt that the offence has been committed on a member of Scheduled Caste or Scheduled Tribe community knowing that such person belongs to the said community. Therefore, having regard to the language of Section 3(2)(v) of the Act of 1989 as it stood after its amended w.e.f. 26.01.2016 and further the prosecution must have led separate evidence to demonstrate that appellants have committed the offence in question knowing fully well the caste identity of the deceased, in light of the decision of Shashikant Sharma (supra), the conviction of Appellant No.1 for offence punishable under Section 3(2)(v) of the Act of 1989 and the sentence of rigorous imprisonment for 10 years, as awarded by the trial Court, is liable to be set aside.

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22. Concludingly, the conviction and sentence of Appellant No.1 for offence punishable under Section 3(2)(v) of the Act of 1989, as imposed upon him by the learned trial Court, is hereby set aside. The conviction of appellant No.1 for offence under section 449 of IPC is affirmed/upheld, however, the sentence of R.I. for 10 years under Section 449 of IPC is reduced to R.I. for 5 years. Further, the conviction of appellant No.1 for offence under Section 302/34 of I.P.C. is converted/altered to Section 304 Part-II/34 of I.P.C. and he is sentenced to 10 years’ rigorous imprisonment. However, the fine amount and its default stipulation shall remain intact.

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23. Consequently, this criminal appeal is partly allowed to the extent indicated herein-above.

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24. Let a certified copy of this judgment along with the original record be transmitted forthwith to the concerned trial Court

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for necessary information & action, if any. A copy of the judgment may also be sent to the concerned Jail Superintendent wherein No.1 is suffering the jail sentence.

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Sd/Sd/-

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(Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge

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Khatai

Ramji @ Sonu Dadsena v. State of Chhattisgarh

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Ramji @ Sonu Dadsena v. State of Chhattisgarh

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