The main legal point established is the application of Exception 4 to Section 300 of IPC in altering the conviction and the requirement of separate evidence to establish the commission of an offence under Section 3(2)(v) of the SC and ST Act, 1989.

JUDGMENT :

Sanjay K. Agrawal, J.

1. This criminal appeal under Section 374(2) of CrPC is directed against the impugned judgment dated 21/04/2015 passed in Special Case No. 05/2013 whereby learned Special Judge (Atrocitiy) Rajnandgaon has convicted the appellant/accused for offences punishable under Sections 302 and 323 of IPC and Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and sentenced for the period as shown in the table below :-

2. Case of the prosecution, in brief, is that on 23/11/2012 at about 09:00 PM at Village Thakurtola, the appellant herein assaulted Chhabilal with a laathi with the intention of causing his death knowing fully well that he was a member of Scheduled Tribes due to which Chhabilal suffered grievous injury on his head and died instantaneously. The appellant also assaulted Arjun Yadav (P.W.1), who tried to intervene, and inflicted simple injuries upon him and thereby, committed the aforesaid offences.

3. Further case of the prosecution, in brief, is that on 23/11/2012, Arjun Yadav (P.W.1) lodged merg intimation (Ex. P/1A) at Police Station Khadgaon stating that at about 9 PM, when he reached the house of Dhiraji (P.W.2) he found that Dhiraji and deceased Chhabilal were sitting together outside his house and with regard to the encroachment made by the appellant in the land in front of Dhiraji's house, the deceased was taunting him as to why he let the appellant encroach the said land. Thereafter, suddenly appellant came therein from the fields after crossing the wooden barrier armed with a teakwood laathi and with the intention of causing death, assaulted deceased Chhabilal on his head and inflicted grievous injury due to which he died instantaneously. When Arjun Yadav (P.W.1) tried to intervene, the appellant also assaulted him and inflicted injury on his knees. On the basis of the merg intimation, FIR for offence punishable under Section 302 of IPC was registered against the appellant vide Ex. P/1 and thereafter, inquest was conducted vide Ex. P/3 and the dead body of deceased Chhabilal was sent for postmortem to Primary Health Center, Mohla wherein postmortem was conducted by Dr. S.R. Mandavi (P.W.4) and the postmortem report has been filed as Ex. P/8 in which cause of death is shock due to excessive haemorrhage as a result of rupture of brain and fracture of bone of skull and the nature of death is homicidal. Nazri naksha was prepared vide Ex. P/10 and pursuant to the memorandum statement of appellant/accused vide Ex. P/5, recovery of teakwood laathi was made from his possession vide Ex. P/6. The seized articles were though sent for chemical examination but no FSL report has been brought on record. After recording the statements of the witnesses and after due investigation, the appellant/accused was chargesheeted for offences punishable under Sections 302 and 323 of IPC and Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 which was committed to the Court of Session for hearing and disposal in accordance with law. The appellant/accused abjured his guilt and entered into defence.

4. In order to bring home the offence, prosecution examined as many as 12 witnesses and brought into record 13 documents. Statement of the appellant/accused was recorded under Section 313 of CrPC wherein he denied guilt but examined none, h