HIGH COURT OF JUDICATURE AT ALLAHABAD
Case :- JAIL APPEAL No. – 3894 of 2011
Appellant :- Dada Ghosh
Respondent :- State Of U.P.
Counsel for Appellant :- From Jail
Counsel for Respondent :- A.G.A.
Hon’ble Om Prakash-VII, J.
Hon’ble Neeraj Tiwari, J.
(Per: Neeraj Tiwari, J.)
The present jail appeal has been preferred by the accused-appellant against judgment and order dated 29.03.2011 passed by Special Judge (SC/ST Act), Allahabad in Sessions Trial No. 642 of 2008 (State Vs. Dada Ghosh) convicting and sentencing the appellant for the offence under section 307 I.P.C. to undergo rigorous imprisonment of 10 years along with fine of Rs. 10,000/-, under section 504 I.P.C. to undergo rigorous imprisonment of one year and under section 3(2)(5) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as “SC/ST Act”) to undergo life imprisonment along with fine of Rs. 15,000/-. In case of default in payment of fine, to further undergo for additional simple imprisonment of one year and one and half years respectively.
The brief facts as stated by informant Raj Kumar in first information report (hereinafter in short “FIR”) are that on 9.4.2008 his father Kallu S/o Dheeraj was drinking tea in the shop of Lala at Baluaghat crossing. Informant and one Suraj Soni S/o Jamuna Prasad, 1119/6, Dariabad, P.S. Attarsuiya were also taking tea and at the same time, the appellant Dada Ghosh S/o Sambhu Ghosh R/o Lallu Panda Ka Hata, Babaji Ka Bagh, Allahabad, presently residing at Baradari, Baluaghat at river bank of Yamuna having no home or family came with knife in hand and due to previous enmity, started abusing the father of the informant and with intention to kill, assaulted on the neck of the father of the informant causing serious injury. Informant along with Suraj Soni intervened in the matter. Looking the serious condition of his father, informant immediately took him to Kalvin Hospital and where from he was referred to SRN Hospital for better treatment. He was admitted there in Ward No. 11 and was under treatment. After improvement in the condition of his father, the informant submitted application for lodging FIR. Since informant was busy in treatment he could not give the information immediately.
On the basis of written statement Ext. Ka-1, chik FIR Ext. Ka-4 was registered on 10.4.2008 at 9:20 against the appellant-accused and same was endorsed on same day and time in GD entry (Ext. Ka-5).
Thereafter, matter was investigated by Sri Upendra Kumar Agarwal, Investigating Officer, Additional S.P./ Circle Officer. He recorded the statement of all the witnesses of incident and also visited the place of occurrence in the presence of informant and witnesses and also prepared site plan (Ext. Ka-7). After completion of investigation, charge sheet Ext. Ka-8 was submitted. Cognizance was taken by the Magistrate concerned and case being exclusively triable by the Sessions Court was committed for trial vide order dated 27.9.2008.
Accused-appellant appeared and charges under sections 307, 504 I.P.C. and under section 3(2)(5) SC/ST Act were framed in trial court to which accused pleaded not guilty and claimed his trial.
Trial proceeded and in order to prove the charges, prosecution examined P.W. 1 (Kallu Lal) injured, P.W. 2 Suraj Soni, P.W. 3 Raj Kumar (informant), P.W. 4 Dr. Sachin Jain (Assistant Professor, ENT Department, Moti Lal Nehru Medical College, Allahabad), P.W. 5 Constable 220 Ganesh Dutt Pandey, P.W. 6 Dr. Rajesh Srivastava Cardiologist, P.W. 7 Sri Upendra Kumar Agarwal (Investigating Officer) and P.W. 8 Dr. Kuldeep Singh. After closure of prosecution evidence, statement of accused-appellant under section 313 Cr.P.C. was recorded in which he denied the prosecution story and attributed his false implication in the case due to old family enmity. No defence evidence was adduced by the appellant.
After hearing learned counsel for prosecution and defence, trial court found that prosecution has fully succeeded in proving the charges against the accused-appellant beyond reasonable doubt and accused-appellant was convicted and sentenced as above, hence this jail appeal.
Heard Sri Arvind Kumar Srivastava, learned Amicus Curiae appearing on behalf of the appellant, Sri Chandrajeet Yadav, learned A.G.A. for the State and perused the records.
Assailing the impugned judgment and order dated 29.03.2011 passed by Special Judge (SC/ST Act), Allahabad, learned Amicus Curiae appearing on behalf of the appellant submitted that the appellant is in jail since 11.4.2008 from the very beginning. He was represented before the trial court by Amicus Curiae appointed by the trial court. Referring to the injury report of the injured, it is further submitted that injury found on the body of injured was simple in nature. Offence under section 307 IPC is not attracted in the present matter. Trial court wrongly and illegally appreciating the prosecution evidence convicted and sentenced the appellant for the offences punishable under sections 307 and 504 IPC and 3 (2) (v) of S.C./S.T. Act. At this juncture, learned Amicus Curiae also referred to the facts mentioned in the first information report as well as statements of the prosecution witnesses i.e. P.W.1., P.W.2 P.W.3 and argued that P.W.3, who is the informant, has made improvement during trail on the point of offence under section 3 (2) (v) of S.C./S.T. Act. In support of his contention, learned Amicus Curiae appearing on behalf of the appellant placed reliance on the following decisions of the Apex Court in the matter of Dinesh @ Buddha Vs. State of Rajasthan; 2006 (55) ACC 314 SC, Ramdas and others Vs. State of Maharashtra; 2007 (57) ACC 47 SC and Amir Ahmad Vs. State; 2017 (101) ACC 47 and argued that none of the ingredients of the offence under section 3 (2) (v) of S.C./S.T. Act are available in the present matter. The impugned judgment and order passed by the trail court is bad in law. There are major contradictions in the statement of prosecution witnesses on the main points. Injured was in the hospital under treatment but the investigating officer recorded the statement of the injured after a gap of several days. Lastly, it was submitted that maximum 10 years’ sentence has been imposed for the offence under section 307 IPC and the appellant has served out 9 years and 11 months in jail.
On the other hand, learned A.G.A. Submitted that the prosecution has successfully proved the charges against the accused. There is no illegality or infirmity in the impugned judgment and order. Injury was caused on the neck of the injured with intention to kill him. Referring to the ingredients of the offence under section 307 IPC, learned A.G.A. argued that all the ingredients of the offence under section 307 504 IPC are available in the present matter. Since injury caused by the appellant to the injured was on vital part of the body, therefore, offence under section 307 IPC is clearly attracted against the appellant. Prosecution case is supported by medical evidence. Minor contradictions occurred in prosecution evidence are not of vital nature to affect the prosecution case. Findings recorded by the trial court regarding involvement of the accused-appellant in committing the present offence are in accordance with law and evidence. Trial court has rightly convicted and sentenced the appellant for the aforesaid offences, hence, no interference is required by this Court. He has further argued that undisputedly injured belongs to scheduled caste, therefore, appellant was rightly convicted and sentenced under section 3(2)(5) of SC/ST Act, 1989 for life imprisonment.
We have considered the rival submissions made by the learned counsel for the parties and have carefully gone through the entire record and evidence.
In the present case, prosecution has examined eight witnesses. To appreciate the controversy, first of all We have gone through the FIR lodged in the matter. It has been clearly stated in the FIR that accused-appellant has assaulted the injured by knife on his neck and by the perusal of injury report, which is Ext. Ka-6, serious injury was found on the neck of the injured i.e. on the vital part of the body, which may cause death of the injured. P.W. 1 in his statement has clearly stated that while he was drinking tea, accused-appellant Dada Ghosh abused the injured and assaulted him by knife causing serious injury. P.W. 1 has also stated in his statement that sister of accused-appellant had illicit relation with the brother of injured but he has denied that his brother was having bad intention for her sister and also denied his any type of involvement in elopement of the sister of accused-appellant.
P.W. 2, who is an independent witness has also given same statement that in his presence accused-appellant abused the injured and also assaulted him by knife causing serious injury on his neck. P.W. 3, who is the informant and son of accused-appellant has also given the same statement that accused-appellant abused the injured addressing him by his caste and also assaulted him by causing serious injury on the neck. So far as evidence of witnesses P.W. 4 to P.W. 8 is concerned, they are formal witnesses and they have also supported the prosecution case to the extent that injured has received serious injury on the vital part of the body i.e. on neck.
We have also perused the statement of accused-appellant recorded under section 313 Cr.P.C. In which he has denied all the allegations except this one that prior to 10 years of present incident, brother of injured Kallu, namely, Mahesh eloped with the minor sister of the appellant, for which an FIR had also been lodged. He has also stated that due to old enmity, he was falsely implicated in this case.
Thus, it is undisputed fact that accused-appellant and injured were having old enmity since long. By the perusal of the injury report as well as statements of P.W. 4 and P.W. 6, it is also clear that injured had received serious injury on the neck which was caused with the intention to kill the injured. Injury found on the body of injured was an incised wound measuring 18cm x 0.2cm x trachea deep present over anterior lateral aspect of Neck at level of thyroid cartilage, therefore, this fact is very much clear that injury so caused by the accused-appellant on the vital part of the body of injured was grievious in nature and in case better treatment is not given to the injured within time, death was also possible. Personal enmity between both the families is admitted fact, therefore, motive of assault is also established. So far as the statements of P.W. 1, P.W. 2 and P.W. 3 are concerned, they are eye account witnesses, their presence on the spot is not doubtful. Injured and other witnesses all were present in the tea stall at the time of incident. Incident is said to have taken place on 9.4.2008 at 8.45 P.M. Tea stall was situated in the same locality, therefore, presence of witnesses and injured at the place of offence cannot be doubted, especially when, prosecution case is supported by medical evidence.
As far as the nature of injury found on the neck of the injured is concerned, P.W. 4 and P.W. 6 both have stated that injury was on vital part and was dangerous to life and it could be caused with knife. Thus finding recorded by the trial court on point of date, time, place of occurrence as well as presence of eye account witnesses on the spot cannot be termed against the evidence available on record or against the law. It is also established from the prosecution evidence that there was sufficient light on the spot. Truthfulness of the facts mentioned in the FIR can also not be doubted on the ground that it was not lodged immediately. Since, the injured has received injury on his neck, it is natural course that he will be taken to the hospital at first for his treatment.
Now Court proceed to deal with the offence for which appellant-accused has been convicted and punished. Charges were framed for the offence under sections 307 I.P.C., 504 I.P.C. and 3(2)(5) SC/ST Act and appellant-accused has been convicted for the same offence. If the entire evidence available on record is minutely analyzed in light of the ingredients of offence under section 307 I.P.C., no illegality or infirmity is found in the finding recorded by the trial court on point of offence under section 307 I.P.C. P.W. 4, P.W. 6 both have clearly stated that injury found on the neck of the injured was fresh in nature, blood was oozing and injury was dangerous to life. Thus, the manner in which injury found on the neck of the injured was caused, it can easily be gathered that appellant caused above injury with the intention to kill the injured.
As far as the offence under section 504 I.P.C. is concerned, only this fact is mentioned in the FIR that “xkyh xykSp djrs gq, esjs firk dks tku ls ekjus dh fu;r ls xys esa Nwjh ls xEHkhj :i ls ?kk;y dj fn;kA” When P.W. 1, (injured) was examined before the Court, nothing was stated by him in the examination-in-chief to constitute the offence under section 504 I.P.C. Similar is the position in the statement of P.W. 2 Suraj Soni. P.W. 3 Raj Kumar (informant) for the first time in the examination-in-chief before the Court, stated that accused at the time of commission of offence had stated that “pekj lkys vkt rqEgsa ugha NksM+saxs vkSj tku ls ekjus dh fu;r ls esjs firk dks ihNs ls vkdj mudk lj idM+dj Nwjs ls esjs firk ds xys esa Nwjh ekj fn;kA” If the above facts in light of the provisions of section 504 I.P.C. are taken into consideration/ analyzed, prosecution was not able to prove the exact word used by the appellant-accused to attract the offence under section 504 I.P.C., therefore, in the opinion of the Court, offence under section 504 I.P.C. is not attracted from the statement of the prosecution witnesses. Thus, finding recorded by the trial court in the present matter in regard to the offence under section 504 I.P.C. is not in accordance with the evidence and law, which needs interference by this Court.
Now we are coming to consider the conviction and sentence of accused-appellant under section 3(2)(5) of SC/ST Act. Before coming to the conclusion, we have gone through the FIR lodged by P.W. 3 i.e. son of injured and by the perusal of the same, it is absolutely clear that there is no whisper in the FIR that due to being scheduled caste, accused-appellant has assaulted the injured with an intention to kill him. In the FIR, it has only been stated that while Kallu (Injured) was drinking tea in the shop of Lala at Baluaghat crossing, accused-appellant Sambhu Ghosh (Yadav Caste) assaulted him by knife with an intention to kill the injured by causing grievious injury, but there is no whisper in the FIR with regard to any type of caste controversy or abusing him by caste. We have also perused the statement of P.W. 1 recorded by enquiry officer in which he has stated that he is “Chamar” by caste and in his complete statement recorded on three dates i.e. 30.4.2010, 19.5.2010 and 3.8.2010, there is no whisper that due to caste bias, he was assaulted by accused-appellant. We have also perused the statement of P.W. 2, Suraj Soni, who is an independent witness present on the spot. In his statement too, he has also not whispered about any such allegation of abuse in the name of caste and simply it is stated that accused-appellant has abused the Kallu (injured) and thereafter assaulted him by knife. What actual word was used to attract the offence under section 3(2)(5) of SC/ST Act is not clear.
Lastly, we have gone through the statement of P.W. 3, the informant and son of injured Kallu. In his statement, he has stated that before assaulting the injured Kallu, accused-appellant has abused the injured in the name of caste.
Learned Amicus Curaie in his argument has clearly stated that without any proper reason, statements of injured P.W. 1 and other witnesses were recorded at a very belated stage and allegation of P.W. 3 in his statement is nothing but a pre-planned second thought to implicate the accused-appellant under section 3(2)(5) SC/ST Act. It may be mentioned here that merely few days delay in recording the statement of injured and other witnesses will not be sufficient to disbelieve the prosecution case. Attending circumstance of the case clearly reveals that delay in recording the statement of witnesses by the Investigating Officer is not fatal to the prosecution case.
We have also perused the law laid down by the Apex Court in the case of Dinesh @ Buddha Vs. State of Rajasthan; 2006 (55) ACC 314 SC and Ramdas and others Vs. State of Maharashtra; 2007 (57) ACC 47 SC.
In Dinesh @ Buddha Vs. State of Rajasthan, Hon’ble Apex Court has held as under:
“Sine qua non for application of Section 3(2)(v) is that an offence must have been committed against a person on the ground that such person is a member of Scheduled Castes and Scheduled Tribes. In the instant case no evidence has been led to establish this requirement. It is not case of the prosecution that the rape was committed on the victim since she was a member of Scheduled Caste. In the absence of evidence to that effect, Section 3(2)(v) has no application. Had Section 3(2)(v) of the Atrocities Act been applicable then by operation of law, the sentence would have been imprisonment for life and fine.”
In Ramdas and others Vs. State of Maharashtra, Hon’ble Apex Court has held as under:
“At the outset we may observe that there is no evidence whatsoever to prove the commission of offence under section 3(2)(v) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The mere fact that the victim happened to be a girl belonging to a scheduled caste does not attract the provisions of the Act. Apart from the fact that the prosecutrix belongs to the Pardhi community, there is no other evidence on record to prove any offence under the said enactment. The High Court has also not noticed any evidence to support the charge under the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and was perhaps persuaded to affirm the conviction on the basis that the prsecutrix belongs to a scheduled caste community. The conviction of the appellants under section 3(2)(v) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 must, therefore, be set aside.”
Both the judgments of Apex Court has also followed by this Court in the case of Amir Ahmad Vs. State; 2017 (101) ACC 47. The Court has held as follows;
“We have gone through the allegations mentioned in the FIR. In the FIR, it has not been mentioned that the prosecutrix/victim was subjected to sexual abuse for the purpose of insulting or humiliating her because of the fact that she belongs to scheduled castes and scheduled tribes community. Victim girl, PW-1 has also not stated on oath that she was subjected to sexual abuse because of being a member of the scheduled castes and scheduled tribes community. Ram Charan, PW 3, who was the scriber of the FIR, Dileep Kumar Singh, PW-5, who recovered the victim, PW-1 and the investigating officer, Ram Yash Singh, PW-6 have also not stated that the prosecutrix was victimised of the offence since she belongs to scheduled castes and scheduled tribes community and, therefore, section 3(2)(v) of the SC and ST Act has no application. Section 3(2)(v) of the SC and ST Act does not provide for any substantive punishment. It only provides for enhanced punishment when an offence is committed under the conditions enumerated in this section. If any offence is found to have been committed under the conditions mentioned in Section 3(2)(v) of the SC and ST Act, then the accused would only be liable for enhanced punishment of imprisonment of life. As Section 3(2)(v) of SC and ST Act does not provide any substantive offence, hence no sentence can be awarded under this section. Section 3(2)(V) of the Act is not an independent offence. It always read with substantive offence under the Indian Penal Code and it is for the purpose of imposing higher quantum of punishment.
In view of the facts and circumstances of the present case, we are of the considered opinion that the findings recorded by the trial court for the commission of offence under section 3(2)(v) of SC and ST Act against the accused-appellant cannot be sustained. The conviction recorded against the accused-appellant under section 3(2)(v) of SC and ST Act deserves to be set aside. Appeal deserves to be partly allowed.”
On close scrutiny of the statements of P.W. 1, P.W. 2, P.W. 3 and the facts mentioned in the FIR as well as taking into consideration the provisions of section 3(2)(5) SC/ST Act, we are also of the view that essential ingredients to attract the offence under section 3(2)(5) SC/ST Act are lacking in the present matter. Trial court while appreciating the prosecution evidence has committed illegality. After considering the facts narrated in the FIR, statements of P.W. 1, P.W. 2 and P.W. 3 and also law laid down by the Apex Court as well as of this Court, it is very much clear that nothing is found to hold that injured was assaulted and subjected to harassment on the caste basis. PW3 falsely with ill intention given his well thought statement against the accused-appellant to implicate him under section 3 (2) (v) of S.C./S.T. Act, 1989. In fact, it was nothing but an outcome of old family enmity of both the persons i.e. accused-appellant as well as injured, therefore, the Court is of the firm view that findings recorded by the trial court for convicting and sentencing the appellant under section 3(2)(5) of SC/ST Act, 1989 is against the evidence and law. For conviction under Section 3(2)(5) of SC/ST Act, 1989 it is necessarily required that offence has been committed against a person on the ground that such person is a member of SC or ST, which is lacking in this case. Therefore, finding recorded by the learned Special Judge for convicting and sentencing the accused-appellant under section of 3(2)(5) of SC/ST Act, 1989 is not sustainable in the eye of law. Thus, the jail appeal is liable to be partly allowed as prosecution was not able to prove the charge under section 504 I.P.C. and 3(2)(5) SC/ST Act beyond reasonable doubt. Since prosecution was able to prove the charge framed against the appellant-accused under section 307 I.P.C., hence findings of the trial court on this issue need no interference.
Accordingly, on the facts and law discussed herein above, this jail appeal is allowed in part. The conviction and sentence of the appellant-accused for the offence under section 504 I.P.C. and 3(2)(5) SC/ST Act is hereby set aside. However, conviction and sentence for the offence under section 307 I.P.C. is hereby affirmed and the sentence of imprisonment and fine imposed for the offence under section 307 I.P.C. is maintained but the imprisonment for the default period in non payment of fine is reduced to the extent of six months only. Appellant-accused is in jail, if he has served out the entire sentence including the period in default of payment of fine, he be released forthwith.
Let a copy of this judgment and order along with trial court record be sent to the trial court forthwith for compliance. Compliance report be also sent to this Court.
Sri Arvind Kumar Srivastava, learned Amicus Curiae has rendered valuable assistance in deciding the jail appeal, which was pending since long and, therefore, he is directed to be paid Rs. 10,000/- as his fees by the office of this Court as per Rules.
Order Date :- 10.04.2018