Kerala High Court
Kunhoyi vs State Of Kerala on 21 February, 2025
Author: Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
Crl.A.No. 16 of 2018 1 2025:KER:14638
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE P. V. BALAKRISHNAN
FRIDAY, THE 21ST DAY OF FEBRUARY 2025 / 2ND PHALGUNA, 1946
CRL.A NO. 16 OF 2018
AGAINST THE JUDGMENT DATED 20.12.2017 IN SC NO.244 OF 2015 OF
ADDITIONAL DISTRICT COURT (SPECIAL COURT FOR TRIAL OF
SC/ST(PA)ACT), KOZHIKODE)
APPELLANT/ACCUSED:
KUNHOYI
AGED 60 YEARS, S/O ALAVI,
AAKKOOTTU CHALIL HOUSE,ALLI P.O, MUKKAM,
KOZHIKODE DISTRICT.
BY ADVS.
SRI.RENJITH B.MARAR
SRI.R.ANAS MUHAMMED SHAMNAD
SMT.LAKSHMI.N.KAIMAL
SMT.RESHMI JACOB
SRI.T.U.SUJITH KUMAR
SRI.P.S.SYAMKUTTAN
SRI.P.VISHNU PAZHANGANAT
Crl.A.No. 16 of 2018 2 2025:KER:14638
RESPONDENT/COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY THE DEPUTY INSPECTOR OF POLICE,
THAMARASSERY POLICE STATION, THROUGH THE PUBLIC
PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
ADDL 2 SHANMUGADAS
S/O BALAN NEDUMBALI(H),AMARAD NEDUBALAMALA,
KATTIPARA P.O,KOZHIKODE-6730574
(IMPLEADED AS PER ORDER DATED 27/9/24 IN CRL.M.A 2/24)
BY SMT. NEEMA T.V, SENIOR PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON
21.02.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Crl.A.No. 16 of 2018 3 2025:KER:14638
JUDGMENT
Raja Vijayaraghavan, J.
The appellant herein stands convicted by the Special Judge for the Trial of
SC/ST (PA) Act Cases/ Sessions Judge, Kozhikode, and was sentenced to undergo
imprisonment for life and to pay a fine of Rs.1,00,000/- and in default, to undergo a
further period of two years under Section 307 of the IPC r/w. Section 3(2)(v) of the
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for
brevity "SC/ST (PoA) Act"). Challenging the finding of guilt conviction and sentence,
the appellant has preferred this appeal.
2. The facts fall within a short compass. One Hussain Haji (CW7) owned
a piece of property at Kidangoor, where the appellant was employed as a Supervisor.
For carrying out works on the property, the appellant used to employ PW1
(Shanmughadas) as well. The relationship between the appellant and PW1 was
strained as on an earlier occasion counterfeit currency notes were given to PW1 as
wages by the appellant. While so, on 28.09.2014 at about 10.30-10.45 a.m., when
the disconnection of the water supply to the house of the appellant was questioned,
the accused, after exhorting that he would teach the appellant a lesson for flaunting
Crl.A.No. 16 of 2018 4 2025:KER:14638
his power as a Cheraman, attacked PW1 with a chopper from behind. When he
turned his face, the cut fell on the right side of his face causing serious injuries to the
face, forehead, and eyelids.
3. Immediately after the incident, PW1 was rushed to the Medical
College Hospital by PW2 (Rajeev) and PW4 (Babuleyan) in the jeep driven by PW9
(Manoj). PW6 (Dr. Ranjini) examined PW1 and issued Ext.P4 Accident
Register-Wound Certificate. Ext.P1 FI Statement was then recorded by PW13, the
Senior CPO attached to the Thamarassery Police Station, and registered Ext.P1(a)
FIR under Section 307 r/w. Section 34 of the IPC and Section 3(1)(x) and 3(2)(v) of
the SC/ST (PoA) Act. One Noorudheen was arrayed as the 2nd accused in the FIR,
and the specific allegation against him was that he had handed over the chopper to
the appellant with which the cut injury was inflicted.
4. The investigation was then taken over by PW11, the Deputy
Superintendent of Police, Thamarassery. He prepared Ext.P3 Scene Mahazar. The site
sketch was prepared by PW7, and in terms of the directions issued by the
Investigation Officer, Ext.P6 Caste Certificate was issued by PW8, the Tahsildar,
Thamarassery. Ext.P9 Caste Certificate of the accused was issued by PW12, the
Village Officer, Kumaranalloor. In the course of the investigation, as it was revealed
that the 2nd accused in the FIR was not involved in the incident, Ext.P10 report was
Crl.A.No. 16 of 2018 5 2025:KER:14638
forwarded to the Court, seeking to delete the name. Later, Ext.P11 report was
submitted seeking to incorporate Section 326 of the IPC. After completing the
investigation, final report was laid before the jurisdictional Magistrate.
5. Committal proceedings were initiated in accordance with the law and
the case was committed to the Special Court for the Trial of SC/ST (PoA) Act Cases,
Kozhikode. After hearing the prosecution and the accused, charges under Section
307 of the IPC and, Section 3(1)(x), 3(2)(v) of the SC/ST (PoA) Act were framed
and when the same was read over, he pleaded not guilty and claimed that he be
tried in accordance with law.
6. To prove the case of the prosecution, 13 witnesses were examined
as PWs 1 to 13 and through them, Exts.P1 to P13 were exhibited and marked.
MOs 1 and 2 were produced and identified. After the close of prosecution
evidence, the incriminating materials arising from the prosecution evidence were
put to the accused under Section 313(1)(b) of the Cr.P.C. The accused denied the
incriminating circumstances and maintained that he was innocent. No evidence
was adduced by the defence.
7. The learned Sessions Judge, after evaluating the entire evidence,
came to the conclusion that the prosecution had successfully proved that the
accused had inflicted cut injuries on the face of PW1 with MO1 Chopper, with the
Crl.A.No. 16 of 2018 6 2025:KER:14638
intention/knowledge to cause his death and thereby, attempted to commit his
murder. Insofar as Section 3(2)(v) of the SC/ST (PoA) Act is concerned, the Court
held that the evidence adduced established that the injuries were inflicted on the
ground that PW1 is a member of the Scheduled Caste. However, insofar as
Section 3(1)(x) of the SC/ST (PoA) Act is concerned, the Court held that the
prosecution evidence did not establish the commission of the said offence by the
appellant.
8. Smt. Lakshmi .N. Kaimal, the learned counsel appearing for the
appellant, submitted that the learned Sessions Judge had arrived at the finding of
guilt without properly evaluating the evidence adduced by the prosecution. It is
submitted that there are numerous omissions, embellishments and exaggerations
in the evidence of PW1, which render him not a reliable witness. As per his earlier
statement, one Noorudheen was arrayed as the 2nd accused in the FIR. Later, he
was transposed as a prosecution witness. Though the prosecution had examined
PW2 to corroborate the version of PW1, their evidence is at variance with each
other on material particulars. It is further submitted that the evidence let in by
the prosecution did not establish any of the ingredients of the offence under
Section 307 of the IPC or under Section 3(2)(v) of the SC/ST (PoA) Act. Relying
on the principles of the law laid down in C. Chenga Reddy and Ors. v. State
Crl.A.No. 16 of 2018 7 2025:KER:14638
of A.P.1, it is submitted that Ext.P6 Caste certificate issued by the Tahsildar, is hit
by Section 162 of the Cr.P.C and no reliance can be placed on the same. The
learned counsel would also refer to the observations made by the Hon'ble
Supreme Court in Asharfi v. State of Uttar Pradesh2 and it is urged that the
prosecution is bound to prove that the accused had the intention to belittle a
person belonging to the SC/ST community. In the case on hand, such an
intention is not made out.
9. Smt. Neema T.V., the learned Public Prosecutor submitted that the
learned Sessions Judge has evaluated the evidence in its proper perspective and
has arrived at the finding of guilt. It is submitted that the prosecution has
established that the victim is a member of the Scheduled Caste and that he was
attacked with a deadly chopper with the intent to cause his death. A proper
reading of the evidence of PWs 1 and 2 would reveal that the injuries were
inflicted on the sole ground that PW1 is a member of the Scheduled Caste.
10. We have also heard Smt. Varna Manoj, the legal aid counsel, who
advanced submissions for and on behalf of PW1.
11. We have carefully considered the submissions advanced and have
[(1996) 10 SCC 193]
[(2018) 1 SCC 742]
Crl.A.No. 16 of 2018 8 2025:KER:14638
perused the entire records.
12. PW1, the injured witness, asserted that he is a member of the
Cheraman community, falling under the category of a Scheduled Caste. According
to him, he noticed that the hose pipe bringing water to his home had dried up.
The pipe from which water is drawn is passing through the property of Hussain
Haji (CW7). On 28.09.2014, at about 10:30-10:45 a.m., he entered the property
of Hussain Haji and found that the hose pipe had been disconnected. When this
was questioned, the accused asked him whether he had not been told not to
enter the property. The accused then warned PW1 not to take liberties with him
merely because he was a member of the Cheraman community. Immediately
thereafter, the accused retrieved a chopper from the shed, came from behind and
swung it towards PW1. When PW1 turned back, the blade struck the right side of
his forehead and right eyelid. He stated that PW2 was present when the injury
was inflicted. He testified that he had previously worked on Hussain Haji's
property, and he was responsible for disbursing the workers' salaries. On one
occasion, out of a total sum of ₹5,000/- entrusted to him, ₹4,000/- was found to
be fake currency notes. Later, in the day, PW1 confronted the accused at the
market about the handing over of fake notes. Since then, the appellant has been
nursing an enmity towards him. PW1 identified the weapon used by the accused
Crl.A.No. 16 of 2018 9 2025:KER:14638
to inflict the injuries. He also stated that he had carried a pipe to redirect the
water, which he later identified as MO2. He testified that Hussain Haji owns
10 Acres of property, located adjacent to his house. He further asserted that the
accused was fully aware of him being a member of the Cheraman community.
13. During cross-examination, PW1 stated that water was collected from
the property above the estate. The shed where the accused had been sitting was
located approximately 250 meters from his house. He added that when he found
that there was no water in his house, he had called the accused, who invited him
to fix the hose pipe. He also conceded that he became angry upon discovering
the disconnected hose pipe and that he questioned the accused. However, he
denied that he was the one who attempted to attack the accused. He pleaded
ignorance regarding the manner in which the accused sustained injuries on his
chest and face. PW1 acknowledged that the accused had filed a complaint against
him and that a case was pending before the Court at Thamarassery against both
him and Rajeev. He denied the suggestion that he and Rajeev were the
aggressors and that, when they proceeded to attack the accused, workers
intervened, resulting in a melee, during which he sustained the injuries. He
maintained that the accused had brought the chopper from inside the shed and
denied that anyone had handed it over to him. It was brought out that PW1 had
Crl.A.No. 16 of 2018 10 2025:KER:14638
not stated in his earlier statements that the accused had cut him from behind. He
also denied in his earlier statement that PW3 had handed over the chopper to the
accused. Additionally, it was highlighted that PW1 had never claimed earlier that
the accused went inside the shed to retrieve the chopper. In re-examination, PW1
explained that he had named PW3 (Noorudheen) as the person who handed over
the chopper, but stated that this was due to the intense pain he was experiencing
at the time.
14. PW2 is a friend of PW1. He stated that he had seen the incident in
which PW1 sustained injuries. When PW2 and PW1 were about to cook food, they
found that there was no water. They then went to the revenue land above the
property of CW7. They found the hose to be disconnected. When PW1 enquired
about the same, the accused called him by his caste name. They were asked to
leave the property. The accused then went to the shed and returned with a
chopper and cut PW1 from behind. When PW1 turned his face, he received cut
injuries. Immediately thereafter, PW1 was shifted to the hospital. He also stated
that the accused gave fake currency notes and that there was a dispute between
the accused and PW1 at the market. According to him, it is owing to the said
enmity that the injury was inflicted. In cross-examination, it was brought out that
he had not stated in his statement to the police that the accused had attempted
Crl.A.No. 16 of 2018 11 2025:KER:14638
to attack him as well. He stated that the incident commenced when the accused
denigrated PW1 by calling his caste name. He stated that the accused inflicted
only one cut injury on PW1. He stated that he had assisted the police in seizing
MO1 weapon from inside the shed. He stated that he did not intervene when the
accused attacked PW1.
15. PW3 is Pandian @ Noorudheen. The said witness was originally
arrayed as the 2nd accused in the FIR. However, he did not support the
prosecution. He, however, stated that both PW1 and PW2 were drunk.
16. PW4 is an attestor to Ext.P3 scene mahazar. He stated that as
pointed out by PW2, MO1 weapon was seized from the shed.
17. PW5 is the elder brother of PW1. He stated that he was also present
when PW1 was taken to the hospital.
18. PW6 is Dr. Ranjini, who examined PW1 at the MCH Kozhikode. She
noted the following injuries:
1. Lacerated wound of bone-deep 8cm x 4cm x 1cm extending
downwards including the lower lid margin.
2. Lacerated wound right upper lid 4cm x 2cm x 1cm including the
forehead lid margin obliquely upward to the forehead. Bone
fragments seen at the infra orbital margin.
Crl.A.No. 16 of 2018 12 2025:KER:14638
3. Right eye conjunctival congestion pupil dilated vision Right eye
6/60 left eye 6/9.
She stated that the injuries noted could be caused by MO1 weapon. To a
leading question posed by the prosecutor "whether the injuries are possible to
cause death", the witness answered in the affirmative.
19. PW7 is the village Officer, Kuttippara, who prepared Ext.P5 Sketch
detailing the place of occurrence.
20. PW8 is the Tahsildar, Thamarassery. He stated that, as requested by
the Dy. S.P., he issued Ext.P6 Caste certificate stating that PW1 is a member of
the Cheraman community, a Scheduled Caste. In cross-examination, he stated
that he had issued the report based on the report submitted by the Village Officer.
21. PW9 is the witness in whose Jeep, PW1 was transferred to the
hospital.
22. PW10 is the SI of Police Thamarasserry, who registered Ext.P1(a)
FIR based on the information furnished by PW13.
23. PW11 is the Investigating Officer. The steps taken by him till the
filing of the final report have already been stated. In cross-examination, he stated
that he had not sent MO1 weapon for any forensic analysis. At the time of the
Crl.A.No. 16 of 2018 13 2025:KER:14638
seizure, MO1 was found kept in a bucket inside the shed. He did not seize the
clothes worn by PW1 at the time of the incident. He denied the suggestion that
PWs 1 and 2 were the actual aggressors and the wounds found on the body of
PW1 were inflicted by the workers present there in the course of a melee. He
stated that he is aware of the registration of Crime No. 696 of 2014 at the
instance of the accused wherein PW1 and PW2 were arrayed as the accused.
According to him, the case was referred to as false after a detailed investigation.
He stated that PW1 in his earlier statement had not mentioned that it was the
accused who used to pay the wages. He also stated that PW1 had not stated to
him that the accused had come from behind and it was when he turned back that
the injury was sustained. The omissions were proved through the witness.
24. We shall first deal with the question as to whether the version of
PW1 and PW2 can be relied upon to hold that the incident of the nature alleged
by the prosecution had taken place. It can be deduced from the evidence
adduced that the accused was working as a supervisor and just prior to the
incident was sitting in a shed about 200 meters towards the east of the property
of PW1. The pipe from which water is drawn by PW1 to his house passes through
the property of Haji. In connection with an earlier incident concerning the alleged
handing over of fake currency notes, the relationship between the appellant and
Crl.A.No. 16 of 2018 14 2025:KER:14638
PW1 was strained. From the evidence of PW1, it can be seen that it was as
permitted by the appellant that he along with Rajeev had come up to check out
the water connection. It was when he reached the property of Haji that it was
noticed that the hose had been disconnected. PW1 questioned the accused
assuming that it was he who had disconnected the water supply. It was then that
the accused told him that he need not take liberties with him utilising his power
as a member of the Cheraman community. He then came from behind and
inflicted the cut injury and when PW1 turned his face, he suffered injuries as
noted by the Doctor on his face.
25. Of course, in the version of PW1, there are minor discrepancies. In
his earlier version, he stated that it was PW3 who had handed over the weapon.
However, in evidence, he said that the name of PW3 was wrongly stated as he
was in great pain. PW1 had also no case that the chopper was swung from
behind and it was when he turned his face that the injuries were sustained. It
was also argued by the learned counsel that the appellant had also sustained
injuries. But it has come out that the crime registered at his instance was referred
after investigation. Then it was urged that PW1 and PW2 were the actual
aggressors and the injuries found on the face were inflicted by the workers.
However, except for cross-examining PW1 on that line, the appellant has not been
Crl.A.No. 16 of 2018 15 2025:KER:14638
able to make any headway. On a careful evaluation of the evidence of PW1 and
PW2, we find no reason to doubt their version as regards the infliction of injuries
by the appellant with MO1 weapon.
26. The next question is whether, in the facts and circumstances, the
offence under Section 307 of the IPC has been made out. The Doctor in his
evidence had stated that the injuries noted by her were grievous. She had noted
bone fragments at the infraorbital margin with a measurement of 8 cm x 4 cm x 1
cm extending downwards including the right lower lid margin. The same wound
also extended towards the upper side and measured 4 cm x 1cm x 1 cm including
the forehead lid margin. To a leading question asked by the Prosecutor, "whether
the injuries were possible to cause death", she answered in the affirmative.
27. For the purpose of conviction under Section 307 of the IPC, the
prosecution has to establish (i) the intention to commit murder and (ii) the act
done by the accused. The burden is on the prosecution that the accused had
attempted to commit the murder of the prosecution witness. To justify a
conviction under Section 307 of the IPC, it is not essential that a fatal injury
capable of causing death should have been caused. Although the nature of the
injury actually caused may be of assistance in coming to a finding as to the
intention of the accused, such intention may also be adduced from other
Crl.A.No. 16 of 2018 16 2025:KER:14638
circumstances. The intention of the accused is to be gathered from the
circumstances like the nature of the weapon used, words used by the accused at
the time of the incident, the motive of the accused, parts of the body where the
injury was caused and the nature of injury and severity of the blows given etc.
(See: Jage Ram And Others v. State Of Haryana3)
28. In State of M.P. vs. Kashiram & Ors.4, the scope of intention for
attracting conviction under Section 307 of the IPC was elaborated and it was held
as under:-
13. It is sufficient to justify a conviction under Section 307 if
there is present an intent coupled with some overt act in execution
thereof. It is not essential that bodily injury capable of causing death
should have been inflicted. The section makes a distinction between the
act of the accused and its result, if any. The court has to see whether the
act, irrespective of its result, was done with the intention or knowledge
and under the circumstances mentioned in the section. Therefore, an
accused charged under Section 307 IPC cannot be acquitted merely
because the injuries inflicted on the victim were in the nature of a simple
hurt.
29. In light of the aforementioned legal principles, when the facts of the
present case are carefully examined, it becomes evident that MO1 is a heavy
cutting weapon measuring approximately 46 cm in length, with the blade portion
alone measuring 24 cm. PW1 entered the property managed by the appellant and
[(2015) 11 SCC 366]
[(2009) 4 SCC 26]
Crl.A.No. 16 of 2018 17 2025:KER:14638
approached him while he was seated in the shed. Even according to PW1, he
became angry and confronted the appellant. Thereafter, as he proceeded to go up
and reconnect the hose, the accused followed him from behind and brandished
the weapon. When PW1 turned his face, the blow from the weapon resulted in a
cut injury on the right side of his face. On sustaining the injury, PW1 fell to the
ground. However, despite holding the weapon in his hand, the accused did not
inflict any further injuries upon him. This is a crucial factor to consider. Had the
accused intended to cause the death of PW1, one would reasonably expect much
more severe injuries, particularly given that MO1 is a heavy-cutting weapon
capable of inflicting grievous harm. Furthermore, the medical evidence contradicts
any intention to cause death, as the doctor noted that the injuries sustained by
PW1 were merely lacerated wounds on the forehead, rather than deep incised
wounds typically associated with a deadly assault. This further supports the
inference that the accused neither possessed the intention nor the requisite
knowledge that his act was likely to cause death. Having considered the facts of
the case from every perspective, we are of the firm view that the ingredients of
an offence under Section 307 of the IPC alone are not made out in the present
case. The act of appellant for causing injury to PW1 is that of causing grievous
injury which is punishable under Section 326 of the IPC.
Crl.A.No. 16 of 2018 18 2025:KER:14638
30. Now the next question is whether the offence under Section 3(2)(v)
of the SC/ST (PoA) Act would be attracted in the instant case. The specific case of
the prosecution is that the accused is a Muslim and PW1 is a member of the
Cheraman community. Smt. Lakshmi Kaimal had advanced a contention that
Ext.P6 Caste Certificate issued by the Tahsildar, Thamarassery, is in the form of a
letter addressed to the Investigating Officer during the stage of investigation and
therefore is hit by Section 162 of the Indian Evidence Act. There is no need to
labour much on the contention as PW8 Tahsildar had entered the box and had
stated that he had obtained a report from the concerned Village officer and
confirmed that PW1 is a member of the Cheraman community. Furthermore, in
cross-examination of the investigating officer and also PW1, the fact that PW1 is a
member of the Cheraman community is not disputed. On the other hand, the
suggestion to the Investigating Officer is that the accused was roped in solely
because of the fact that PW1 is a member of the Scheduled Caste.
31. Even if we proceed under the premise that PW1 is a member of the
Scheduled Caste community, in order to attract Section 3(2)(v) of the Act, it
needs to be proven that the ingredients of the offence are made out. In the case
on hand, the incident took place on 28.09.2014.
32. Section 3(2)(v) of the SC/ST (PoA) Act as it stood then reads as
Crl.A.No. 16 of 2018 19 2025:KER:14638
under:
(2) Whoever, not being a member of a Scheduled Caste or a Scheduled
Tribe,--
(v) 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;
33. A plain reading of Section 3(2)(v) of the SC/ST (PoA) Act, makes it
unequivocally clear that only a person who is not a member of a Scheduled Caste
or Scheduled Tribe could be punished with imprisonment for life and a fine if they
committed an offence under the Indian Penal Code punishable with imprisonment
of ten years or more on the ground that the victim was a member of a Scheduled
Caste or Scheduled Tribe or that the property involved belonged to such a
member. It needs to be noted that it was by Act 1 of 2016 which came into effect
from the phrase that the phrase "on the ground that such person is a member of
a Scheduled Caste or a Scheduled Tribe or such property belongs to such
member" was substituted with the phrase "knowing that such person is a member
of a Scheduled Caste or a Scheduled Tribe or such property belongs to such
member.
34. In the present case, PW1 had previously been engaged to carry out
Crl.A.No. 16 of 2018 20 2025:KER:14638
work on a property where the appellant was the Supervisor. There was evident
animosity between the two, as PW1 alleged that the appellant had handed him
counterfeit currency notes as wages, which had led to an earlier altercation. Even
on the date of the incident, PW1, in his evidence, stated that the accused had
permitted him to enter the property. It was when he noticed that the hose pipe
was disconnected that PW1 became agitated and proceeded to confront the
appellant, who was inside the shed. It was during this confrontation that the
appellant allegedly remarked that PW1 should not take undue liberties with the
power he holds as a member of the Cheraman community. We find that there was
no explicit attempt by the accused to denigrate, demean, or belittle PW1 on the
grounds of his caste. Rather, the remark was clearly directed against the
perceived conduct of PW1 and the appellant felt that PW1 was overstepping his
bounds by entering into the property that he had been managing. It is clear that
the appellant was not asserting a caste-based superiority. His statement at best
was a means of expression to convey his resentment over PW1's actions on that
day rather than expressing any inherent bias or discriminatory intent towards
PW1 as a member of the Cheraman community. We also find on an overall
evaluation of the facts that the altercation had ensured not because of the caste
identity of PW1, but due to a previous history of personal enmity between the two
individuals. In other words, the incident was a result of a personal conflict rather
Crl.A.No. 16 of 2018 21 2025:KER:14638
than an act intended to subjugate PW1 due to his caste. As held in Asharfi
(supra), under the unamended provisions of Section 3(2)(v) of the SC/ST
(Prevention of Atrocities) Act, the legislative intent was to penalize offences
committed with a specific intention to belittle a person solely because they belong
to a Scheduled Caste or Scheduled Tribe community. In the present case,
however, there is no material to establish that the appellant's actions were driven
by such an intention. Accordingly, the provisions of Section 3(2)(v) of the SC/ST
Act would not be attracted in the instant case.
35. In view of the discussion above, we hold that the prosecution has
established that on 28.9.2014 at about 10.45 a.m., the accused had intentionally
inflicted cut injuries on PW1 with MO1 chopper and caused grievous injuries.
However, we hold that the prosecution has failed to bring home the ingredients of
the offence under Section 307 of the IPC. We are of the view that the facts
proved only establishes the commission of an offence under Section 326 of the
IPC. We also hold that the prosecution has failed to establish that the accused
had attempted to commit the offence on the ground that he is a member of
Scheduled Caste. Insofar as the offence under Section 326 of the IPC is
concerned, we are of the view that sentencing the appellant to imprisonment for
three years and ordering him to pay a fine of Rs.1,00,000/- (Rupees One lakh
Crl.A.No. 16 of 2018 22 2025:KER:14638
only) would serve the ends of justice.
36. Consequently, this appeal is partly allowed. We acquit the accused
for the offence under Section 3(2)(v) of the SC/ST (PoA). We set aside the finding
of guilt under Section 307 of the IPC and instead, find him guilty of the offence
under Section 326 of the IPC and sentence him to undergo Rigorous
Imprisonment for three years and to pay a fine of Rs.1,00,000/- (Rupees One
lakh only) and in default of payment of the fine, the appellant shall undergo
imprisonment for a further period of six months. Out of the fine amount, if
realised, a sum of Rs.90,000/- (Rupees Ninety thousand only) shall be paid to
PW1 by way of compensation under section 357(1)(b) of the Cr.P.C.
With the above modification, this appeal is partly allowed.
Sd/-
RAJA VIJAYARAGHAVAN V,
JUDGE
Sd/-
P.V. BALAKRISHNAN,
JUDGE
PS/ APM/19/02/25
