Telangana High Court
Kurva Anjilappa vs State Of Telangana on 13 December, 2023
Author: K.Lakshman
Bench: K.Lakshman
THE HON'BLE SRI JUSTICE K.LAKSHMAN
AND
THE HON'BLE SMT JUSTICE K.SUJANA
CRIMINAL APPEAL No.1013 OF 2019
JUDGMENT:
(PER HON'BLE SMT JUSTICE K.SUJANA) This appeal is preferred by the appellant being aggrieved by the judgment dated 16.05.2019 passed by the Special Sessions Judge for Trial of Offences under SC/ST (POA) Act-Cum-VII Additional District and Sessions Judge, at Ranga Reddy District, at L.B.Nagar, in S.C.No.123 of 2017 wherein, the appellant was convicted for offence punishable under Section 307 of the Indian Penal Code (for short 'IPC') and under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short 'SCs and STs (POA) Act, 1989'). For offence under Section 307 of IPC, the accused was sentenced to undergo simple imprisonment for life. For offence under Section 3(2)(v) of the SCs and STs (POA) Act, 1989, he was sentenced to undergo simple imprisonment for life and to pay fine of Rs.100/- (Rupees One Hundred Only) I.D.S.I. for one month. Both the sentences were directed to run concurrently.
2. The brief facts of the case are that the accused is unmarried and is having illegal intimacy with the victim - Smt Era Venkatamma KL, J & SKS, J Crl.A.No.1013 of 2019 2 (LW.2). Both of them used to go to the labour work together. When LW.2 started avoiding the accused and was also unwilling to talk to him and was closely moving with another person, the accused got annoyed and suspected her character and hatched a plan to eliminate her and was waiting for opportunity. On 21.07.2015 LW.2 came to Tandur Village for attending labour work and then went to Antharam Village for attending labour work at LW.3 - Mohd Rafiq Ahmed's scrap shop. After completing her work, while she was returning to her village at about 17:00 hours, the accused picked up quarrel with her and stabbed her with knife on the right side of stomach, due to which she received bleeding injuries.
3. To prove the case, the prosecution examined PWs.1 to 11 and got marked Exs.P1 to P14 and got marked MO.1. On behalf of accused/appellant, none were examined and no documents were marked.
4. Basing on the evidence on record and after hearing submissions from either side, the trial Court convicted the accused, as stated supra.
5. Though legal aid counsel is appointed to represent the appellant/accused, no arguments are advanced on behalf of KL, J & SKS, J Crl.A.No.1013 of 2019 3 appellant/accused. Heard learned Additional Public Prosecutor, appearing for respondent - State.
6. Learned Additional Public Prosecutor submitted that the evidence on record is sufficient to convict the accused and there are no infirmities in the judgment of the Trial Court, as such, prayed the Court to dismiss the appeal.
7. To prove the case, the prosecution examined PWs.1 to 11 and got marked Exs.P1 to P14 and marked MO.1.
PW.1 is the de facto complainant and the husband of the victim. He deposed that he is having two wives and the victim is his second wife. His first wife is Mallamma with whom he has two sons and one daughter. His second wife is the victim (LW.2) with whom he has two daughters. About three years back LW.2 went to attend coolie work and he got a phone call from LW.2 who informed him that while returning from work, the accused picked up quarrel with her and stabbed with knife on her right side stomach and she received bleeding injuries. On the same day at night he lodged complaint before the Police, Tandur.
KL, J & SKS, J Crl.A.No.1013 of 2019 4 PW.2 is the victim. She deposed that on the day of incident at about 06:00 P.M., while she was returning from work, the accused came to the scrap shop in Antaram Village and picked up quarrel with her as she was not attending work along with him and then the accused stabbed her with knife on the right side of stomach as a result of which she fell unconscious and by her co-labourers, she was shifted to Government Hospital, Tandur, for treatment. She informed about the incident to PW.1 over a phone call.
PW.3 is the owner of the scrap shop where LW.2 went to attend coolie work. He deposed that he came to know through locality people that a quarrel took place in front of his shop and he could not identify the accused who was present in the Court. PW.3 has not supported the case of prosecution. PW.4 is the labourer who was present when the Police, Tandur, prepared the panchanama and rough sketch in connection with the stab injuries. The Police obtained the signatures of PW.4 in the panchanama and rough sketch. PW.5 is the panch for confession and recovery of MO.1 - knife.
KL, J & SKS, J Crl.A.No.1013 of 2019 5 PW.6 is the Tahsildar who issued caste certificates of PWs.1 and 2 stating that they belong to SC Madiga caste. PW.7 is the Tahsildar who issued the caste certificate of accused stating that he belongs to BC Kurva community. PW.8 is the Doctor who found stab injury with a sharp weapon over the right upper quadrant of abdomen of victim with lacerated wound extending into liver with severe bleeding. He opined that the said injury was grievous injury. PW.9 is the Investigating Officer. He deposed about the investigation conducted by him.
PW.10 is the CI of Police, Siddipet Rural Service. PW.11 is the ACP, CCS, Nizamabad. He deposed about the investigation done in the case.
8. Now, the points for determination are:
1. Whether the prosecution proved the guilt of the accused for the offence under Section 307 of IPC and under Section 3(2)(v) of the Act, 1989, beyond reasonable doubt?
2. Whether the judgment of trial Court needs interference?
KL, J & SKS, J Crl.A.No.1013 of 2019 6 POINT Nos.1 to 2:
9. To prove the offence under Section 3 (2)(v) of the SCs and STs (POA) Act, 1989, the prosecution has to prove that the accused committed the offence under Section 307 of IPC on the ground that the victim belongs to scheduled caste or scheduled tribe community.
10. It is noticed that PW.1 who is the complainant has no where mentioned in his chief affidavit about the caste of the victim or the caste of accused. He has not deposed anything that the accused committed offence on the ground that the victim belongs to SC community. PW.2 has also not deposed anything about the caste of accused or the caste of victim. However, though it was stated that the accused belongs to BC Kurva community, nowhere it is stated that the accused committed offence but for the fact that the victim belongs to SC community.
11. There is no dispute with regard to the caste of victim and the caste of the accused. PWs.9 to 11 have also not deposed anything about the offence being committed on the ground of the caste of victim. The evidence of PW.10 shows that since PW.2 belongs to SC community, he added the Section of law under Section 3(2)(v) of the SCs and STs (POA) Act, 1989. PW.9 recorded the statements of KL, J & SKS, J Crl.A.No.1013 of 2019 7 PWs.1 and 2 and the same does not disclose that PWs.1 and 2 has anywhere stated to him that the accused committed offence in view of the caste of victim.
12. As such, it can be said that except disclosing the fact that the victim belongs to SC community and the accused belongs to BC Kurva community, there is no other evidence on record to prove the allegation that the accused committed offence on the ground that the victim belongs to SC community. As such, it cannot be said that accused committed offence on the ground of her caste. In this regard the Hon'ble Apex Court in Patan Jamal Vali Vs The State of Andhra Pradesh 1 held as under :
"65. The issue as to whether the offence was committed against a person on the ground that such person is a member of a SC or ST or such property belongs to such member is to be established by the prosecution on the basis of the evidence at the trial. 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 would be reasonable to presume that the accused knew the caste of PW2 since village 1 2021 SCC Online Sc 343 KL, J & SKS, J Crl.A.No.1013 of 2019 8 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 intersectional nature of oppression PW2 faces, it becomes difficult to establish what led to the commission of 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.
66. 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. Section 8 which deals with presumptions as to offences was also amended to include clause (c) to provide that if the accused was acquainted with the victim or his family, the court shall presume that the accused was aware of the caste or tribal identity of the victim unless proved otherwise. The amended Section 8 reads as follows:
"8. Presumption as to offences. - In a prosecution for an offence under this Chapter, if it is proved that (a) the accused rendered [any financial assistance in KL, J & SKS, J Crl.A.No.1013 of 2019 9 relation to the offences committed by a person accused of], or reasonably suspected of, committing, an offence under this Chapter, the Special Court shall presume, unless the contrary is proved, that such person had abetted the offence; (b) a group of persons committed an offence under this Chapter and if it is proved that the offence committed was a sequel to any existing dispute regarding land or any other matter, it shall be presumed that the offence was committed in furtherance of the common intention or in prosecution of the common object. [(c) the accused was having personal knowledge of the victim or his family, the Court shall presume that the accused was aware of the caste or tribal identity of the victim, unless the contrary is proved.]"
67. The Parliament Standing Committee Report on Atrocities Against Women and Children has observed that, "high acquittal rate motivates and boosts the confidence of dominant and powerful communities for continued perpetration" and recommends inclusion of provisions of SC & ST Act while registering cases of gendered violence against women from SC & ST communities . However, as we have noted, one of the ways in which offences against SC & ST women fall through the cracks is due to the evidentiary burden that becomes almost impossible to meet in cases of intersectional oppression. This is especially the case when courts tend to read the requirement of "on the ground" under Section 3(2)(v) as "only on the ground of". The current regime under the SC & ST Act, post the amendment, has facilitated the conduct of an intersectional analysis under the Act by replacing the causation requirement under Section 3(2)(v) of the Act with a knowledge requirement making the regime sensitive to the kind KL, J & SKS, J Crl.A.No.1013 of 2019 10 of evidence that is likely to be generated in cases such as these.
68. 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 Section 3(2)(v) would consequently have to be set aside."
13. In the light of the above extracted portion, the conviction of the accused for the offence under Section 3(2)(v) of the SCs and STs (POA) Act, 1989, is liable to be set aside.
14. To prove the offence under Section 307 of IPC, the evidence of PW.2 who is victim and injured witness, reveals that there is prior acquaintance between herself and accused and that they used to attend the labour work together but subsequently disputes arose between them, as such, she avoided to attend the work along with accused, as such, he bore grudge against her and quarreled with her and stabbed her with knife on right side of stomach, due to which she received bleeding injuries. The evidence of PW8 - Medical Officer, supports the statement of PW.2. According to PW.8, he found stab KL, J & SKS, J Crl.A.No.1013 of 2019 11 injury with a sharp weapon over the right upper quadrant of abdomen of victim with lacerated wound extending into liver with severe bleeding. He opined that the said injury was grievous injury. The evidence of PW.5 - panch for confession and recovery of MO.1, reveals that at the instance of accused when he proceeded to the scene of offence along with DSP, Tandur, the accused picked up the knife from the road side bushes and handed it over to the Police. As such, from the seizure of MO.1 - knife from the accused, it can be said that the prosecution has proved the offence committed by accused under Section 307 of IPC.
15. In view thereof, this Court is of the opinion that in the light of the judgment rendered by the the Hon'ble Apex Court in Patan Jamal (supra) the conviction of the accused for the offence under Section 3 (2) (v) of SCs/STs (POA) Act, 1989 is liable to be set aside and is accordingly, set aside, whereas, there is no illegality in convicting the accused for the offence under Section 307 of IPC. The trial Court sentenced the accused to undergo simple imprisonment for life for offence under Section 307 of IPC. However, as the accused is in jail from 11.12.2017 i.e., the date of arrest, till today i.e., almost six years, on considering the age of accused and the nature of offence committed by him, this Court is of the opinion that KL, J & SKS, J Crl.A.No.1013 of 2019 12 the period already undergone by him is sufficient. Accordingly, the point Nos.1 and 2 are answered.
16. IN THE RESULT, the appeal is partly allowed. The appellant/accused is acquitted for the offence punishable under Section 3 (2) (v) of SCs/STs (POA) Act, 1989 and his conviction for the offence punishable under Section 307 of IPC is confirmed and the sentence imposed on him is reduced to the period already undergone by him.
Miscellaneous applications, if any, pending in this Criminal Appeal shall stand closed.
____________________ K. LAKSHMAN, J __________________ K.SUJANA, J Date :13.12.2023 PT KL, J & SKS, J Crl.A.No.1013 of 2019 13 HON'BLE SRI JUSTICE K. LAKSHMAN AND HON'BLE SMT JUSTICE K. SUJANA P.D. JUDGMENT IN CRIMINAL APPEAL No.1013 OF 2019 (Pre-delivery judgment of the Division Bench prepared by the Hon'ble Smt Justice K. Sujana) Date:13.12.2023 PT