Andhra Pradesh High Court - Amravati

Kamireddi Sai Kumar vs The State Of Andhra Pradesh on 15 December, 2023

          THE HON'BLE SRI JUSTICE T.MALLIKARJUNA RAO

                    Criminal Petition No.9339 of 2023

ORDER :

1. This Criminal Petition is filed by Petitioner/A.4 under Section 438 of

the Code of Criminal Procedure, 1973 (for short, 'Cr.P.C') seeking

anticipatory bail in Crime No.109 of 2022 of Sullurupet Police Station, Nellore

District, registered for the offences punishable under Section 448, 326, 324,

323, 427 and 506 read with 34 Indian Penal Code, 1860 (for short, 'I.P.C')

and Section 3 (1) (r) (s) of SCs & STs (POA) Act, 1989 (for short, 'the act').

2. Brief facts of the Prosecution case is that, the offences allegedly said

to have been occurred on 15.08.2023 at about 21.40 hours at Soniagandhi

nagar, Sullurupeta town, at that time, there was heavy rain and water

stagnated on the street. All the accused were travelling in the car and A.4

was driving the car rashly. When the car passed, the water stagnated on the

road have spilled on Sridhar and his wife and those two persons stopped the

car. A1 and five members have got down the car and arguing with Sridhar

and his wife. While the Defacto Complainant's father was standing on the

road, A1 along with other accused picked up quarrel with him and abused

him by touching his caste on the pretext that he kept boulders on the road.

When the Defacto Complainant questioned them, all the accused trespassed

into the Defacto Complainant's house by kicking the gate door, beat him on

his face as a result of which, his tooth were dislocated. They also pelted

stones on him and his younger brother and caused multiple injuries. A.1 also

TMR,J

abused the Defacto Complainant's mother on her caste lines and threatened

her with dire consequences that to vacate the house and damaged flower

pots and created havoc in the premises.

3. Learned counsel for the Petitioner/A.4 submits that due to political

influence, a false case was foisted against the Petitioner; the ingredients of

the alleged offences are not attracted against the Petitioner; the Petitioner is

entitled to the benefit of the Hon'ble Apex Court's Judgment rendered in

Arnesh Kumar Vs. State of Bihar and another1; most of the investigation is

completed, except filing of the charge sheet; the other Accused in this case,

were already released on bail; Petitioner was ready and willing to cooperate

fully with the investigation and he is ready to furnish suitable security and

abide by any conditions which the Hon'ble Court deem fit and proper.

4. Learned Assistant Public Prosecutor, for the Respondent-State

opposed to grant bail to the Petitioner/A.4 on the ground of investigation is

pending and if the Petitioner is enlarged on anticipatory bail, there is a

possibility of tampering with the evidence.

5. Heard learned counsel for the Petitioner/A.4, the learned Assistant

Public Prosecutor representing the respondent/State.

6. Perused the material on record. A serious objection has been raised

regarding the maintainability of the anticipatory bail application on the

(2014) 8 SCC 273

TMR,J

ground that crime is registered against the accused persons under section 3

(1) (r) (s) of SCs & STs (POA) Act.

7. It is useful to reproduce section 18 of the SCs/STs Act, which reads as

under:

18. Section 438 of the Code not to apply to persons committing an offence under the Act.- Nothing in section 438 of the code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act."

8. A reading of Section 3(2)(v) of the Act makes it clear that merely

because a person who does not belong to a member of a Scheduled

Caste/Scheduled Tribe commits any offence under the Indian Penal Code

punishable with imprisonment for a term of 10 years or more against a

person belonging to a Scheduled Caste/Scheduled Tribe, the offence under

section 3(2)(v) would not get attracted. Section 3(2)(v) was amended by the

Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities)

Amendment Act, 2016 which came into effect on 26th January, 2016. The

words "......... on the ground that" under section 3(2)(v) have been

substituted with "....... Knowing that such person is a member of a Scheduled

Caste/Scheduled Tribe". Thus, subsequent to the amendment sine qua non

for application of Section 3(2)(v) is that offence must be committed by a

person who does not belong to a member of a Scheduled Caste/Scheduled

Tribe against a person belonging to Scheduled Caste/Scheduled Tribe with

the knowledge that such person is a member of Scheduled Caste/Scheduled

TMR,J

Tribe. In the absence of averment to that effect, the offence under section

3(2)(v) would not get attracted.

9. In Hitesh Verma v. State of Uttarakhand and another 2, the

Hon'ble Apex Court referred the decision in Khuman Singh v. State of

Madhya Pradesh3, wherein the Hon'ble Apex Court held that:

In a case for applicability of Section 3 (2) (v) of the Act, the fact that the deceased belonged to Scheduled Caste would not be enough to inflict enhanced punishment. This Court held that there was nothing to suggest that the offence was committed by the appellant only because the deceased belonged to Scheduled Caste. The Court held as under:

15. As held by the Supreme Court, the offence must be such so as to attract the offence under Section 3 (2) (v) of the Act. The offence must have been committed against the person on the ground that such person is a member of Scheduled Caste and Scheduled Tribe. In the present case, the fact that the deceased was belonging to "Khangar" -

Scheduled Caste is not disputed. There is no evidence to show that the offence was committed only on the ground that the victim was a member of the schedule Caste and therefore, the conviction of the appellant-accused under Section 3 (2) (v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act is not sustainable.

10. In Prathvi Raj Chauhan v. Union of India and others4, the

Hon'ble Apex Court referred the decision in Vilas Pandurang Pawar and

Anr5, wherein, the Hon'ble Apex Court held that:

10. The scope of Section 18 of the SC/ST Act read with Section 438 of the Code is such that it creates a specific bar in the grant of anticipatory bail. When an offence is registered against a person under the provisions of the SC/ST Act, no court shall entertain an application for anticipatory bail, unless it prima facie finds that such an offence is

(2020) 10 SCC 710

2019 SCC OnLine SC 1104

(2020) 4 SCC 727

(2012) 8 SCC 795

TMR,J

not made out. Moreover, while considering the application for bail, scope for appreciation of evidence and other material on record is limited. The court is not expected to indulge in critical analysis of the evidence on record. When a provision has been enacted in the Special Act to protect the persons who belong to the Scheduled Castes and the Scheduled Tribes and a bar has been imposed in granting bail under Section 438 of the Code, the provision in the Special Act cannot be easily brushed aside by elaborate discussion on the evidence."

In light of the above settled legal position, now I appreciate the

contentions raised on behalf of both sides.

11. Learned counsel for the Petitioner/A.4 contends that the allegations in

the complaint do not establish A.4's personal knowledge of the Defacto

Complainant's caste. The material on record prima facie suggests that the

Petitioner/A.4 made caste abuses against the Defacto Complainant's father

indicating that he was aware of the Defacto Complainant's caste. According

to the Prosecution's case, Petitioner/A.4 was also present during the incident.

In support of said stand, the Prosecution relied on statements of witnesses

U/sec.161 of Cr.P.C., during the course of investigation. The accusation

against the Petitioner/A.4 is that he struck the Defacto Complainant's face

causing the loss of three teeth. The accused are also alleged to have

threatened the Defacto Complainant and his family members to vacate the

house under the threat of killing them. They reportedly destroyed flower

plants and attempted to forcibly open the doors, when the Defacto

Complainant's family objected.

12. Learned counsel for the Petitioner argues that Section 326 of IPC is

not applicable to the facts of the case. To attract Section 34 of IPC, no overt

TMR,J

act is needed on the part of the accused, if they share common intention

with others in respect of the ultimate criminal act, which may be done by any

one of the accused sharing such intention. The essence of Section 34 of IPC

is simultaneous consensus of the minds of persons participating in the

criminal action to bring about a particular result. Such consensus can be

developed at the spot and thereby intended by all of them. As per the

Prosecution's case, all accused went to the Defacto Complaint's premises and

allegedly participated in the offence.

13. Learned counsel for the Petitioner/A.4 further argues that even

according to the Prosecution's case, the grievous injury said to have caused

to the Victim, resulted from beating on his face, leading to the dislocation of

his tooth. The material placed on record shows the Victim sustained grievous

injury. The Petitioner contends that deadly weapon was not used for

allegedly causing grievous injury to the Victim. In this context, learned

counsel for the Defacto Complainant relies on Section 161 of Cr.P.C.,

statements recorded during the investigation. However, the Petitioner's

counsel disputed the correctness of those statements by contending that

such a version is not put forth in the First Information Report. It is settled

law that an FIR is not an encyclopedia of facts, and a Victim is not expected

to give details of the incident in the FIR. FIR is not an encyclopedia expected

to contain all the details of the prosecution case; it may be sufficient if the

broad facts of the prosecution case alone appear. If any overt act is

attributed to a particular accused among the assailants, it must be given

TMR,J

greater assurance. The statements of witnesses i.e., LWs.1 to 3 recorded

under section 161 of Cr.P.C., during the investigation indicate that the Victim

was beaten with a stone on his face.

14. Learned counsel for the Petitioner contends that the statements

recorded under section 161 of Cr.P.C., can only be used to demonstrate

contradictions or omissions and they are deemed inadmissible in evidence

and cannot be relied on.

15. Learned counsel for the Petitioner further relied on the decision in

Parvat Singh & Ors., V. State of Madhya Pradesh6, wherein the Hon'ble

Supreme Court held that:

13.1. ................As per the settled proposition of law, the statement recorded under Section 161 CrPC can be used only to prove the contradictions and/or omissions. Therefore, as such, the High Court has erred in relying upon the statement of PW 8 recorded under Section 161 CrPC while observing that the appellants were having the lathis.

16. Learned counsel for the Petitioner further relied on the common

decision in Junaid V. State, Chand Mohd., V. State & Irshad V. State 7,

wherein the High Court of Delhi held that:

6................... The "statement under Section 161 Cr.PC is Inadmissible in Evidence and cannot be Relied Upon For Conviction"............

17. This Court views that the proposition of law relied on by the

Petitioner's counsel cannot be disputed. The above citations do not show

(2020) 4 SCC 33

2021 SCC OnLine Del 724

TMR,J

that section 161 of Cr.P.C., statements cannot be relied on while dealing with

the bail applications. At this stage, it is pertinent to refer to the decision in

Indresh Kumar V. State of Uttar Pradesh & anr.,8, the Hon'ble

Supreme court held that:

The High Court has ignored the materials on record including incriminating statements of witnesses under section 164/161 of the Code of Criminal Procedure. Statements under Section 161 of Cr.P.C., may not be admissible in evidence, but are relevant in considering the prima facie case against an accused in an application for grant of bail in case of grave offence.

18. Learned counsel for the Petitioner/A.4 contends that the stone is not a

deadly weapon. In Prabhu V. State of Madhya Pradesh9, the Hon'ble

Supreme Court held that:

13...........................At this juncture, it would be relevant to note that in some provisions e.g. Sections 324 and 326 expression "dangerous weapons" is used. In some other more serious offences the expression used is "deadly weapon" (e.g. Sections 397 and 398). The facts involved in a particular case, depending upon various factors like size, sharpness, would throw light on the question whether the weapon was a dangerous or deadly weapon or not. That would determine whether in the case Section 325 or 326 would be applicable."

19. Even otherwise, the contents of the FIR indicate that the stones were

employed in the commission of offence. At this stage, it cannot be said that

the stones said to be used by the Accused persons are not dangerous

weapons. The material on record prima facie shows the involvement of the

2022 LiveLaw (SC) 610

Crl.A.No.1956 of 2008 arising out of SLP (Crl.) No.1418 of 2008

TMR,J

Petitioner/A.4's role in the commission of offence. As the material on record

prima facie suggests that the injuries were said to be caused by the user of

the stones. At this stage, it cannot be conclusively asserted that the stones

used by the accused persons are not dangerous weapons and the ingredients

of section 326 of IPC are not attracted to the facts of the present case.