HIGH COURT OF CHHATTISGARH. BU-ASPUR D.B: Hon'ble Shri Rajeev Gupta, C.J., & Hon'ble Shri Sunil Kumar Sinha, J. Criminal Appeal No. 85 of 2003 Panchu Yadav Vs. State of Chhattisgarh & (Connected Cr.A. No. 86 of 2003) & JUDGMENT Sd/- Sunil Kumar Sinha Judge HON'BLE SHRI JUSTICE RAJEEV GUPTA J ^yrr^^- & Sd/- Chief Justice Post for Judgment •^JoQ/2008 Sd/- SunilKumarSinha Judge (^T HIGH COURT OF CHHATTISGARH. BILASPUR c.: D.B: Hon'ble Shri Rajeev Gupta, C.J., & Hon'ble Shri Sunil Kumar Sinha, J. APPELLANT RESPONDENT APPELLANT RESPONDENT Criminal Appeal No. 85 of 2003 Panchu Yadav S/o Naresh Yadav, Aged about 27 years, R/o Jhiriya Kalan, P.S. Pandaria, District ~ Kawardha (C.G.) Vs. State of Chhattisgarh, Through P.S. Pandaria, District - Kawardha (C.G). & Criminal Appeal No. 86 of 2003 Ram Bharose S/o Adlu Gond, Aged about 21 years, R/o Jhiriya Kalan, P.S. Pandaria, District - Kawardha (C.G.) Vs. State of Chhattisgarh, Through P.S. Pandaria, District - Kawardha (C.G). (Appeals underSection 374 (2) ofthe Cr.P.C.) Appearance: Shri V.C. Ottalwar, Counsel for the appellants, in both the appeals. Shri U.N.S. Deo, Govt. Advocate, for the State, in both the appeals. JUDGMENT (^^08.2008) Following judgment of the Court was delivered by Sunil Kumar Sinha, J, (1) These appeals are directed against the judgment of conviction and order ofsentence dated 17 of December, 2002 passed in Special Case No. 155/2001 by the Special Judge under S.C. & S.T (Prevention r Criminal Appeals No. 85/2003 & 86/2003 ^ c: of Atrocities) Act, 1989, Bilaspur, whereby appellant Panchu Yadav has been convicted u/s 302 IPC and section 3(2)(V) of the Schedu.led Castes and scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the Special Act) and sentenced to undergo imprisonment for life in two counts respectively and to pay a fine of Rs.500/- in the first count, in default thereof to further undergo S.l. for two months and the appellant Ram Bharose has been convicted u/s 302/34 IPC and sentenced to undergo imprisonment for life and to pay a fine of Rs.500/- in default thereof, to further undergo S.l. for two months. (2) The case of the prosecution is that on 18.8.2001, Dilip Kumar, since deceased, was grazing his cattle in Gadahiyadihkhar. Ishwari Prasad (P.W.2) and Bhuruwa Ram (P.W.4) were also grazing their cattle in nearby place. At about 3 p.m., appellant Panchu came there along with his one associate. He started abusing Dilip, saying why he has brought his cattle for grazing to this place. Some hot exchanges took place between them. The allegations are that Panchu gave one Lathi blow to Dilip, onwhich, Dilip fell down and when Dilip stood up he gave another blow, due to which, Dilip became unconscious and lateron he died. Mahettar (P.W.1) is the grand-father of the deceased. He reached to the place of occurrence immediately and the incident was narrated to him. Thereafter he went to the Police station and lodged the First Information Report, Ex.P.1. (3) The Investigating Officer reached to the scene of occurrence, prepared inquest, Ex. P.4, on the body of deceased and sent the dead body for postmortem vide Ex.P-9-A. The post mortem examination was Criminal Appeals No. 85/2003 & 86/2003 c conducted by Dr. Ashok Singh (P.W.7), who prepared his report Ex.P.10. The autopsy Surgeon noticed two external injuries, one contusion & on lacerated wound on the forehead and left fronto-parietal region with fracture of fronto-parietal bone. He opined that the cause of death was shock'due to intra-cranial hemorrhage. The caste certificate of the deceased Dilip, Ex.P.9,was also seized. Thereafter, appellant Panchu was taken into custody and his memorandum u/s 27 of the Evidence Act was recorded vide Ex. P-5, in pursuance of which, a Bamboo club was seized under Ex. P.6. The seized articles were sent for their chemical examination to the Forensic Science Laboratory from where Report Ex.P-13 was received. In further investigation, appellant Ram Bharose was arrested on 26.9.2001 and was put to test identification parade on 12.10.2001. He was identified by Ishwari Prasad (P.W.2) & Bhuruwa Ram (P.W.4) and identification memo Ex. P-14 was prepared by the Executive Magistrate. (4) After completion of the usual investigation, charge sheet was filed in the court of Judicial Magistrate First Class, Mungeli. The matter was committed and was received by the Special Judge, Bilaspur, who conducted the trial and convicted and sentenced the accused appellants as aforementioned. (5) Shri V.C. Ottalwar, learned counsel for the appellants argued that so far as appellant Ram Bharose is concerned, he has been falsely implicated in this case and on the basis of evidence adduced against him, no case u/s 302/34 IPC is proved against him beyond reasonable doubts. He referred to the evidence of P.W.2 and P.W.4 and pointed out various discrepancies in their evidence, particularly in relation to the 4 Criminal Appeals No. 85/2003 & 86/2003 @> omissions regarding the acts attributed to Ram Bharose by these witnesses in their police case diary statements. About Panchu, he argued that in the facts and circumstances, the offence committed by Panchu would not travel beyond section 304 Part II IPC. About the conviction under the Special Act, he submitted that there is absolutely no material to convict appellant Panchu under the said provisions, therefore, the conviction u/s 3(2)(V) of the said Act is absolutely without any material on record. (6) On the other hand, learned State Counsel opposed these arguments and supported the judgment and order passed by the trial Court. (7) We have heard learned counsel for the parties at length and have also heard the records of the Sessions Case. (8) Ishwari Prasad (P.W.2) deposed that "on the date of incident, he had gone for grazing his cattle along with Bhuruwa Ram (P.W.4). Deceased Dilip was also grazing his cattle. Panchu and Ram Bharose came there. They were abusing Dilip by taking nameof his caste and were saying that why he had brought his cattle for grazing in this field. Thereafter, Ram Bharose gave one Lathi blow to the deceased, on which, he fell down and when he stood up, Panchu gave another Lathi blow on his head". He was cross examined with reference to his police case diary statements Ex.D-2 and Ex.D-3. In his two case diary statements, this witness had stated that Panchu has assaulted the deceased with Lathi on which he fell down and when he stood up, he gave another Lathi blow to him. He had stated in these statements that Criminal Appeals No. 85/2003 & 86/2003 c another person was also accompanying Panchu Ram, but he does not know the name of that person. He has very specifically stated that the person who was accompanying Panchu Ram had not madeany assault to the deceased. His first statement Ex.D-2 was recorded on 19.8.2001 and the second statement Ex.D-3 was recorded on 20.8.2001. When he was faced with these statements, he denied all this and stated that he had told to the Police what he is telling in his court evidence. (9) P.W.4 Bhuruwa Ram is the other eye witness. He has also deposed in similar fashion. According to him, when they were grazing their cattle, Panchu and Ram Bharose came there, they started abusing the deceased, there were some hot exchanges between them and thereafter appellant Ram Bharose gave a Lathi blow to the deceased on which he fell down and when he stood up another blow was given by Panchu Ram. In para 4 of his evidence, he admitted that when Mehattar Ram reached to the scene of occurrence and asked that who caused injuries, he had stated the names of both the appellants to him. He is the brother of deceased and grand son Mehattar Ram (P.W.1). He was also faced with his police case diary statements Ex.D-4 & D-5, in which, he had stated that Panchu had given two Lathi blows to the deceased and he was not knowing the name of that person who had accompanied Panchu Ram and that person had not assaulted the deceased^at all^and ran away from the scene of occurrence. He denied about the omissions and deposed that he had told to the Police what he is telling in his court evidence. In fact, he could not explain in the court evidence that when he was knowing the name of Ram Bharose then why he had not mentioned his name at the time of his 161 statements. /f-^\ ^®r^. % Criminal Appeals No. 85/2003 & 86/2003 (10) On appreciation of evidence of these two witnesses, we find that omissions on the part of these witnesses about not mentioning the name of appellant Ram Bharose in their Police Case Diary statements are fatal to the prosecution. When P.W.4 admitted that he told the names of both the assailants to his grand father,who immediately reached to the scene of occurrence, then there was no reason with this witness for not taking his name at the time of recording 161 statements and only saying that another person was accompanying appellant Panchu Yadav. The same would be the situation in respect of P.W.2 because he also named the appellant Ram Bharose in his court evidence, but he had not taken his name in case diary statements. (11) If we look into the contents of the First Information Report, Ex.P.1, it would appear that even the presence of another person with appellant Panchu is missing in the F.1. R. If, in fact, the maker of the F.1. R. was told by the eye-witnesses that Panchu was accompanied by Ram Bharose then certainly some description to this effect would have been there in the F.1.R. This shows that in fact the maker of the F.1.R. was not briefed about the role of any other person in crime in question except that of Panchu and this creates doubt about the involvement of appellant Ram Bharose in crime in question. (12) In light of the above background, in fact, the evidence of test identification is of no use to the prosecution. If Ram Bharose was previously known to the eye witnesses^ as they are claiming in their court evidence, they would have told his name to the Police when their 161 statements were being recorded and in that situation, there would have been no necessity of arranging the test identification parade. But ,y^^ Criminal Appeals No. 85/2003 & 86/2003 L. they did not do so and in the identification parade, they identified Ram Bharose telling his name as Arjani. Therefore, in lightof the court statements of these two eye witnesses, no reliance can be placed on the test identification parade held on 12.10.2001 and finally, we are of the considered view that in the above facts and circumstances, the prosecution has failed to make out a case beyond reasonable doubts against appellant Ram Bharose and he is entitled to benefit of doubt. (13) Now we shall consider the case of appellant Panchu. On the evidence of two eye witnesses, it appears that the quarrel between the deceased and this appellant began on account of grazing of cattle of the deceased in a particular area. During the quarrel, firstly, this appellant had some hot exchanges with the deceased and then all of a sudden he assaulted the deceased with a bamboo club which he was possessing. The bamboo club was 138 cms long and was having a diameter of 7 - 11 centimeters. This kind of bamboo club is generally kept by the villagers, who are engaged in cattle grazing. On appreciation of the entire material on record, we do not find that in fact, the appellant was having an intention to cause the murder of the deceased. It appears that on a petty matter, without there being a premeditation and preparation, a sudden quarrel took place without any intention, in which this appellant dealt with Lathi blows to the deceased which proved fatal. Exception 4 of Section 300 IPC covers the act done in a sudden fight. It comes into play if the death is caused without premeditation in a sudden fight without the offender's having taken undue advantage or acted in a cruel or unusual manner and the fight had taken place with the person killed. The law is that to bring a case within Exception 4, all the ingredients mentioned in it must be found. Criminal Appeals No. 85/2003 & 86/2003 (14) If we examine the case on hand on the above principles, it would appear that there was no premeditation and in a sudden fight between the deceased and the appellant Panchu, in heat of passion, upon a sudden quarrel without the appellant's having taken undue advantage, the Lathi b\o\NS were given to the deceased, which does not show that he has acted in a cruel or unusual manner. In these facts and circumstances, in our opinion, this case would fall within Exception 4 of section 300 IPC and as the appellant was having knowledge that the act done by him is likely to cause death, but he did so without any intention to cause death orto cause such bodily injury so as to cause death, he would be liable for punishment u/s 304 Part II IPC. (15) As far as conviction u/s 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) 1989 is concerned, we find that the same is based on no material on record. Clause (v) of sub- section (2) of Section 3 of the Special Act provides that whoever, not being a member of a Scheduled Caste or a Scheduled Tribe, commits any offence under the Indian Penal Code (45 of 1860) 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 property belongs to such member, shall be punishable with imprisonment for life and with fine. This clearly indicates that for attracting above provisions of this sub-section, the offence alleged under the IPC must be an offence punishable with imprisonment for a term of 10 years or more and it must have been committed on the ground that the victim is a member of Scheduled Cast or Scheduled Tribe. On a careful scrutiny of the entire evidence on Criminal Appeals No. 85/2003 & 86/2003 record, we do not find any evidence to indicate that appellant Panchu had committed this offence for the reason and on the ground that deceased Dilip was belonging to scheduled caste. It appears that only on account of calling the caste of the victim at the time of hot exchanges between the victim and this appellant, the trial Judge has taken the view that an offence u/s 3(2)(v) of the Special Act would be made out in this case. we are unable to sustain the view taken by the learned trial Judge in this regard and the conviction and sentence awarded to appellant Panchu u/s 3(2)(v) of the Special Act deserve to be set aside. (16) In the result- (i) Cr.A.No.86/2003 filed by appellant Ram Bharose is allowed. The conviction and sentence awarded to him u/s 302/34 IPC are set aside. He is acquitted of the charges framed against him. (ii) Cr.A.85/2003 filed by appellant Panchu Yadav is partly allowed. The conviction and sentences awarded to him u/ss 302 IPC and 3(2)(v) of the Scheduled Castes and scheduled Tribes (Prevention of Atrocities) Act, 1989 are set aside. Instead, he is convicted u/s 304 Part-11 IPC and sentenced to undergo rigorous imprisonment for 10 years. The appellant shall be entitled to set off for the period already undergone by him. Sd/- Chief Justice Sd/- Sunil Kumar Sinha Judge /RQQ/