REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1283  OF 2019 (Arising out of SLP(Crl.) No.6647 of 2018)

KHUMAN SINGH                          …..Appellant

VERSUS

STATE OF MADHYA PRADESH               ….Respondent

J U D G M E N T

R  . BANUMATHI, J.

Leave granted.

2. This appeal arises out of the judgment dated 02.02.2018

in Criminal Appeal No.799 of 2006 passed by the High Court of

Madhya Pradesh at Gwalior Bench in and by which the High

Court  affirmed the conviction of  the appellant-accused under

Section 302 IPC and under Section 3(2)(v) of the Scheduled

Castes  and  Scheduled  Tribes  (Prevention  of  Atrocities)  Act,

1989 and the sentence of life imprisonment imposed upon him.  

3. Brief facts which led to filing of this appeal are as under:-

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On  14.08.2005  at  about  11:00  AM,  complainant-Rajaram

(PW-1)  along  with  his  brother  Raghuveer  (PW-2),  deceased

Veer  Singh  and  relative  Badam  Singh  (PW-7)  had  gone  to

cultivate the fields and for grazing their cattle.  When deceased

Veer Singh was cultivating the field and others were grazing the

cattle,  appellant-accused Khuman Singh came to the field of

deceased  Veer  Singh  and  left  his  buffaloes  for  grazing.

Deceased Veer Singh objected to it and drove the buffaloes of

the  appellant-accused  out  of  his  field  on  which,  appellant

became furious and started abusing and scolding the deceased

that how the deceased who belongs to  Khangar Caste could

drive away the buffaloes of  Thakurs out  of  his  field.   When

deceased objected to it, it is alleged that the appellant with an

intention to kill the deceased, attacked him with an axe due to

which, deceased Veer Singh fell down.  Thereafter, appellant-

accused allegedly  gave two-three blows on the head of  the

deceased with axe.   On seeing the complainant  (PW-1),  his

brother  (PW-2) and Badam Singh (PW-7) coming,  appellant-

accused ran away from the spot.  Deceased died on the spot

itself. Rajaram (PW-1) lodged the Dehati Nalishi/complaint (Ex.-

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P1)  based  on  which,  FIR  in  Crime  Case  No.306/2005  was

registered  against  the  appellant-accused  under  Section  302

IPC and under Section 3(2)(v) of  the Scheduled Castes and

Scheduled Tribes (Prevention of Atrocities) Act.  Dr. Pradeep

Sharma (PW-5) had conducted the post-mortem on the dead

body  of  deceased Veer  Singh  and  found  six  injuries  on  his

head.  PW-5  issued  post-mortem  certificate  (Ex.P10)  opining

that the cause of death was shock due to excessive external

and internal bleeding. Upon completion of investigation, charge

sheet  was filed against  the appellant-accused under  Section

302 IPC and under Section 3(2)(v) of  the Scheduled Castes

and Scheduled Tribes (Prevention of Atrocities) Act.   

4. To  prove  the  guilt  of  the  accused,  the  prosecution

examined three eye witnesses viz. Rajaram (PW-1), Raghuveer

(PW-2) and Badam Singh (PW-7) who have spoken about the

occurrence and R.C. Bhoj,  Police Incharge (PW-4),  who has

recorded Dehati Nalishi (Ex.-P1), Dr. Pradeep Sharma (PW-5)

who  has  conducted  post-mortem  on  the  dead  body  of

deceased  and  other  witnesses.  Upon  consideration  of

evidence, the trial court held that the prosecution has proved

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the  guilt  of  the  accused beyond reasonable  doubt  and  vide

judgment  dated  11.09.2006  convicted  the  appellant-accused

under  Section  302  IPC  and  sentenced  him  to  undergo  life

imprisonment. Since the deceased was a Scheduled Caste, the

appellant-accused was also convicted under Section 3(2)(v) of

the  Scheduled  Castes  and  Scheduled  Tribes  (Prevention  of

Atrocities)  Act  and  sentenced  to  undergo  life  imprisonment

along with a fine of Rs.1,000/-. Being aggrieved, the appellant

has preferred appeal before the High Court.

5. The High Court affirmed the conviction of the appellant-

accused by holding that mere delay in recording the statement

of the witnesses under Section 161 Cr.P.C. is not fatal to the

case  of  prosecution.   After  referring  to  the  evidence  of

Mohinder Kanwar (PW-9)-Investigating Officer, the High Court

held  that  there  was  a  communal  tension  in  the  locality  and

therefore,      PW-9 could not immediately record the statement

of  the  witnesses  and  therefore,  delay  in  recording  the

statement  of  witnesses  would  not  affect  the  case  of

prosecution.  The High Court also held that the delay in sending

the FIR (Ex.-P9) to the Magistrate cannot be said to be fatal to

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the  case  of  prosecution.   Insofar  as  the  conviction  under

Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes

(Prevention  of  Atrocities)  Act,  the  High  Court  held  that  the

deceased Veer Singh belonged to  Khangar Caste which is a

Scheduled Caste and when deceased objected to the act of the

appellant-accused of leaving his cattle in the field of deceased,

appellant got furious and scolded that as the deceased belongs

to  Khangar Caste, how he could dare to drive the cattle of a

person belonging to Thakur Caste and hence, the prosecution

has proved the commission of the offence under Section 3(2)(v)

of the Scheduled Castes and Scheduled Tribes (Prevention of

Atrocities) Act and the sentence of imprisonment imposed upon

the appellant does not call for any interference.

6. We  have  heard  Dr.  J.P.  Dhanda,  learned  counsel

appearing on behalf of the appellant and Ms. Pragati Neekhra,

learned counsel  appearing for  the State of  Madhya Pradesh

and  perused  the  impugned  judgment,  evidence  and  other

materials  on  record.  The  point  falling  for  consideration  is

whether the conviction of the appellant-accused under Section

302 IPC and under Section 3(2)(v) of  the Scheduled Castes

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and  Scheduled  Tribes  (Prevention  of  Atrocities)  Act  is

sustainable?

7. Rajaram (PW-1)  and  Raghuveer  Singh  (PW-2)  are  the

real brothers of deceased Veer Singh. Badam Singh (PW-7) is

the real brother of the wife of deceased and is not resident of

the village where occurrence took place. PWs 1, 2 and 7 who

are eye-witnesses have consistently stated that on the date of

occurrence-14.08.2005,  when  deceased  Veer  Singh  was

cultivating  the field  and they  were grazing  their  buffaloes  at

nearby place,  at  that  time, appellant-accused Khuman Singh

came there  along with  his  buffaloes  and started grazing his

buffaloes at the farmyard of the field of deceased Veer Singh.

When  deceased  drove  the  buffaloes  out  of  his  field,  the

appellant is alleged to have abused the deceased calling him

by  his  caste  “Khangar” as  to  how  he  can  force  away  the

buffaloes of  “Thakurs”. In  a  wordy altercation,  the appellant-

Khuman Singh hit the deceased on his head with an axe due to

which, deceased fell down and later succumbed to injuries. On

considering  the  evidence  of  PWs  1,  2  and  7  who  have

consistently spoken about the occurrence, the prosecution has

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proved that the appellant caused the injuries on the head of the

deceased with an axe.

8. The  question  falling  for  consideration  is  whether  the

appellant-accused intentionally caused the death of deceased

Veer Singh? The entire incident occurred when the appellant

had taken his buffaloes for grazing in the field of deceased for

which the deceased objected and drove all the buffaloes out of

his  field.  It  is  in  these circumstances,  the  appellant  became

furious and abused the deceased and caused injuries on his

head in a sudden fight with axe. There was no premeditation for

the occurrence and because of the grazing of the cattle, in a

sudden fight, the occurrence had taken place.  

9. The question to be considered is whether the act of the

appellant-accused would fall under Exception 4 to Section 300

IPC?  Exception 4 to Section 300 IPC can be invoked if death

is caused:- (a) without premeditation; (b) in a sudden fight; (c)

without the offender having taken undue advantage or acted in

a cruel or unusual manner; and (d) the fight must have been

with  the  person  killed.  In  the  present  case,  the  appellant-

accused and the deceased exchanged wordy abuses on which,

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appellant  gave the deceased blows on his  head causing six

head injuries. Where the occurrence took place suddenly and

there was no premeditation on the part of the accused, it falls

under Exception 4 to Section 300 IPC.  

10. As discussed earlier, the entire incident was in a sudden

fight in which the appellant-accused caused head injuries on

the deceased with an axe. There was no prior deliberation or

determination to fight. The sudden quarrel arose between the

parties  due  to  trivial  issue  of  grazing  the  buffaloes  of  the

appellant for which, the deceased raised objection. In a sudden

fight,  the  appellant  had  inflicted  blows  on  the  head  of  the

deceased with an axe which caused six head injuries. Though

the weapon used by the appellant  was axe and the injuries

were inflicted on the vital part of the body viz. head, knowledge

is  attributable  to  the  appellant-accused  that  the  injuries  are

likely to cause death. Considering the fact that the occurrence

was in a sudden fight, in our view, the occurrence would fall

under Exception 4 to Section 300 IPC. The conviction of the

appellant-accused under  Section  302  IPC is  therefore  to  be

modified as conviction under Section 304 Part II IPC.  

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11. The next question falling for consideration is whether the

conviction under Section 3(2)(v) of the Scheduled Castes and

Scheduled  Tribes  (Prevention  of  Atrocities)  Act  can  be

sustained?  Deceased  belongs  to  “Khangar” Caste  and  in  a

wordy altercation, appellant-accused is said to have called the

deceased by his caste name “Khangar” and attacked him with

an  axe.  Calling  of  the  deceased  by  his  Caste  name  is

admittedly  in  the  field  when  there  was  a  sudden  quarrel

regarding grazing of the buffaloes.  

12. From the evidence and other materials on record, there is

nothing  to  suggest  that  the  offence  was  committed  by  the

appellant only because the deceased belonged to a Scheduled

Caste.  Both  the trial  court  and the High Court  recorded the

finding that the appellant-accused scolded the deceased Veer

Singh that he belongs to  “Khangar” Caste and how he could

drive away the cattle of the person belonging to “Thakur” Caste

and  therefore,  the  appellant-accused  has  committed  the

offence  under  Section  3(2)(v)  of  the  Scheduled  Castes  and

Scheduled Tribes (Prevention of Atrocities) Act. Section 3 of the

said Act deals with the punishments for offences of atrocities

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committed  under  the  Scheduled  Castes  and  the  Scheduled

Tribes (Prevention of Atrocities) Act,  1989. Section 3(2)(v) of

the Act reads as under:-

“Section 3 – Punishments for offences of atrocities –  

(1)  ………

(2)  Whoever, not being a member of a Scheduled Caste or a

Schedule Tribe, -  

…….

(v)  commits  any  offence  under  the  Indian  Penal  Code

punishable with imprisonment for a term of ten years or more

against a person or property knowing 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”.

The  object  of  Section  3(2)(v)  of  the  Act  is  to  provide  for

enhanced punishment  with  regard  to  the offences  under  the

Indian Penal Code punishable with imprisonment for a term of

ten years or more against a person or property knowing that the

victim is a member of a Scheduled Caste or a Scheduled Tribe.

13. In  Dinesh alias  Buddha v.  State of  Rajasthan  (2006)  3

SCC 771, the Supreme Court held as under:-

“15. Sine qua non for application of Section 3(2)(v) is that an

offence  must  have  been  committed  against  a  person  on  the

ground that such person is a member of Scheduled Castes and

Scheduled Tribes. In the instant case no evidence has been led

to establish this requirement. It  is  not case of the prosecution

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that  the  rape  was  committed  on  the  victim  since  she  was  a

member of Scheduled Caste.  In the absence of evidence to that

effect, Section 3(2)(v) of the Atrocities Act been applicable then

by operation of law, the sentence would have been imprisonment

for life and fine.

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  Scheduled  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.

14. Insofar  as  the  conviction  under  Section  302  IPC  is

concerned, as discussed earlier, the conviction of the appellant

under Section 302 IPC is modified as conviction under Section

304 Part II IPC. The appellant-accused has been serving the

sentence  in  jail  for  more  than  twelve  years.  As  per  the  jail

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certificate issued by the Superintendent, Central Jail, Gwalior,

the appellant has served the actual sentence in jail  for more

than twelve years (as on 04.07.2018) and as on date, he has

served the sentence of more than thirteen years. Considering

the  facts  and  circumstances  of  the  case,  for  the  conviction

under Section 304 Part  II  IPC, the appellant  is sentenced to

undergo imprisonment to the period already undergone.

15. In the result, the conviction of the appellant under Section

3(2)(v)  of  the  Scheduled  Castes  and  Scheduled  Tribes

(Prevention of Atrocities) Act is set aside and he is acquitted of

the said charge. The conviction of the appellant under Section

302 IPC is modified as conviction under Section 304 Part II IPC

and  is  sentenced  to  undergo  imprisonment  to  the  period

already undergone.  Accordingly,  the  appeal  is  partly  allowed

and the  appellant  is  ordered  to  be  released  forthwith,  if  his

presence is not required in any other case.

                                                   ………………………….J.                                                                [R. BANUMATHI]

………………………….J.                                                                [A.S. BOPANNA] New Delhi; August 27, 2019.

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