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
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(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
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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.
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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.
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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
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
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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
2021 SCC Online Sc 343
KL, J & SKS, J
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
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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
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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
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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
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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
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
