ORDER
1. The question that arises in this Criminal Revision is when a person is charged for commission of offence under Section 302 IPC (2 counts) in relation to persons belonging to Scheduled Castes or Scheduled Tribes, whether charge under section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the Act) should also be framed.
2. The facts leading to the controversy can be briefly stated as :-
The petitioner herein Elabi @ Murugesan one Palanivel Selvaraj and Marialious were friends. On 11.6.1999 at 10.30 P.M. they were playing cards. In the course of the play, altercation occurred, as a result of which the petitioner strabbed Selvaraj on his back with a knife. He had also attacked Palanivel with the same knife on the head, chest and rib, as a result of which Selvaraj and Palanivel died. A case in Crime No.148 of 1999 under Section 302 was registered the case and filed final report to the following effect:-
On 11.6.1999 the accused being armed with a knife hidden in his waist, with such intention of causing the murder of Selvaraj and Palanivel began to playing cards with them along with Mariyaluis at about 10.30 P.M. in thatched shed situated on the western side of the graveyard at the western bank of Vennar river at Marakkadai Village.
Thereby the accused had committed an offence and rendered himself liable to be punished under Sections 302 IPC. (2 counts) and Section 3(2)(v) of the S.C. and S.T.Act.”
3. The petitioner questioned the correctness of the charges under sec 3(2)(v) of S.C. and S.T.(Prevention of Atrocities) Act before the second Additional District & Sessions Judge, Thanjavur, who held that the petitioner committed offence against the deceased persons fully knowing well that they belonged to the Scheduled Caste and therefore charge under Section 3(2)(v) of the Act would arise. Aggrieved by the order passed by the learned second Additional District and Sessions Judge, the accused petitioner had preferred the instant Criminal Revision.
4. Heard both the sides. Section 3(2)(v) of the Act recites as under:-
“3 Punishments for offence of atrocities –
(1)………. …… …
(2) Whoever, not being a member of a Scheduled Caste or a Schedules Tribe-
(i)….
(ii) ….
(iii)….
(iv)…..
(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 Scheduled Tribe or such property belongs to such member, shall be punishable with imprisonment for life and with fine.”
5. I have very carefully perused the charges and also the 161 statement of the eye-witnesses, namely, Srinivasan Ananadarj and Maria Louis. All of them had stated that because of some dispute in playing cards, the accused attacked the deceased, because they belonged to Scheduled Caste or Scheduled Tribe, i.e. with an intention of attacking a person belonging to Scheduled Caste or Scheduled Tribe.
6. The learned Counsel for the petitioner drew my attention to the decision reported in Abdul Gafarsab v. State of Karnataka, 1998 Crl.L.J.2488, where a Division Bench of the Karnataka High Court had occasion to deal with this aspect. The Division Bench of the Karnataka High Court expressed the following view:-
…. merely because it has come on record that the deceased belonged to the Scheduled caste, that this is no ground on which the accused can be convicted for an offence under this Act unless it is demonstrated that he has by his conduct said or done something that is directed to offend the sensibilities of the deceased in relation to the caste to which he belonged. The submission is that a scrutiny of the evidence will indicate that irrespective of what the evidence may establish with regard to the main charge, that there is no material to sustain the conviction under the subsidiary head. On a careful scrunity of the record, we are in agreement with this submission as there is no justification for holding that the accused has committed any offence under the S.C. & S.T. (Prevention of Atrocities) Act, 1989.”
7. In a still recent decision, reported in Referring Officer v. Police Station, Khammam, 1999 Crl.L.J. 4173, a Division Bench of the Andhra Pradesh High Court has looked at the proposition from a different angle, in that it laid stress upon the quantum of sentence to be imposed as per Section 3(2)(v) of the Act. The Andhra Pradesh High Court has held that Section 3(2)(v) of the Act envisages enhanced punishment and that in cases where the offences punishable with imprisonment of ten years or more are committed against a member of Scheduled Caste or Scheduled Tribe on the ground that such person is a member of that particular community, then instead of ten years or more, he shall be punishable with imprisonment for life and with fine. The Andhra Pradesh High Court pointed out that the Section provides enhanced punishment and when the punishment under Section 302 prescribed by law itself is for death or imprisonment for life, addition of charge under Section 3(2)(v) of the Act would be redundant. I am in respectful agreement with the view expressed by the Andhra Pradesh High Court. It cannot be said that when a person is punishable with death sentence being one coming under the class of punishment for a term of ten years or more, then instead of death, sentence, the life sentence should be imposed. That would frustrate the very purpose of the provision, when the case is charged of an offence under Section 302 IPC (2 counts), if the charge is proved, the sentence that can be imposed on his is either death sentence or life sentence. When that is the case, it cannot be said that provisions of Section 3(2)(v) of the Act would arise. In fact, the Andhra Pradesh High Court has pointed out in Referring Officer v. Police Station, Khammam cited supra as follows:-
” The object of the provisions under S. 3(2)(v) is to provide for enhanced punishment in regard to offence punishable under IPC with imprisonment for a term of ten years or more if such offence is committed on the ground that the victim is a member of Scheduled Caste or Scheduled Tribe. Where the punishment of not less than imprisonment for life and higher sentence i.e. death sentence is provided for in respect of offences such as the one under Section 302, IPC, the question of applying clause (v) of Section 3(2) does not arise.”
8. I hold that the no charge under section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, would arise and the learned Second Additional District and Sessions Judge, Thanjavur would avoid framing of charge under Section 3(2)(v) of the Act at the time of framing of charges. This Crl.R.C. is ordered accordingly. Consequently, connected Crl.M.P. is closed.