Rajnish Dwivedi vs State of U.P.

R.K. Rastogi, J.—This is a revision against order dated 19.6.2003 passed by Sri Surendra Vikram Singh Rathore, Special Judge, (S.C./S.T. Act) Jhansi framing charge against the revisionist u/s 3(2)(v) of The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (the Act) in Session Trial No. 39 of 2003.

The facts relevant for disposal of this revision are that on 8.1.2003 Arvind Kumar lodged F.I.R. at police station; Prem Nagar. Jhansi with these allegations that his sister Smt. Avlesh was employed in Nehru Yuva Kendra, Jhansi. Accused Rajnish Dwivedi was also employed there. About one month ago Rajnish Dwivedi committed indecent assault upon Smt. Avlesh and she had slapped him at that time and had also made a complaint to the ineharge. Nehru Yuva Kendra, and so Rajnish Dwivedi felt aggrieved with Smt. Avlesh and her husband Sachin Kumar Srivas.

On 7.1.2003 Sachin Kumar and Smt. Avlesh were going on a motor cycle from the house of Dhani Ram Verma to then own house. The informant and his uncle Hari Ram Verma were following them on another motor cycle. At about 9 P.M. they reached near Kendriya Vidyalaya No. 3 and at that time Rajnish Dwivedi, Chhotu alias Sahban Ali and Santosh Sharma reached there on a boxer motor cycle. This motor cycle was being driven by Santosh Sharma. They obstructed Avlesh and Sachin Kumar and Rajnish Dwivedi fired at Sachin Kumar and Avlesh from pistol in his hand with intent to kill them. Sachin Kumar received fire arm injury on his stomach and Smt. Avlesh received injury on her hand. Both of them fell down. Thereafter the above accused persons went away from the spot on the motor cycle. This incident was witnessed by Arvind Kumar etc. Upon noise Jitendra and some other persons also reached there and then they took Smt. Avlesh and Sachin Kumar to medical college for treatment.

This report was lodged at 0.10 A.M. on 8.1.2003 and on the basis of the same, a case u/s 307 I.P.C. was registered against accused persons. Sachin Kumar died thereafter and so charge u/s 302 I.P.C. was also added in this case. After investigation charge sheet was submitted, against Rajnish Dwivdi. Sahban All alias Chhotu and Santosh Kumar under Sections 302. 307 I.P.C. and Section 3(2)(v) of the S.C.S.T. Act. The case was committed to the court of sessions from where it was transferred to the court of the Special Judge, S.C./S.T. Act for trial who framed charge against accused Rajnish Dwivedi u/s 302, 307 I.P.C. and Section 3(2)(v) of the said Act.

Aggrieved with this charge u/s 3(2)(v) of the Act accused Rajnish Dwivedi has filed this revision.

I have heard learned Counsel for the revisionist, the learned A.G.A for the Stale and Km. Anzum Haq for the complainant.

The learned Counsel for the revisionist referred to Section 3(2)(v) of Act. which reads as 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 often 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;

He submitted that in order to constitute offence punishable under the above Section it is essential that the offence must be committed against the person or property on the ground that such person is a member of scheduled caste or scheduled tribe or such property belongs to such member. He submitted that this fact is not disputed that deceased Sachin Kumar and injured Avlesh are members of scheduled caste, but there is no allegation to this effect in the entire F.I.R. that the offence was committed against them on the ground that they were members of scheduled caste. He also referred to the statement of the informant and the injured Avlesh and other eye witnesses recorded in the case diary in which also no such assertion has been made that the offence was committed on the ground that the injured and deceased were members of scheduled caste.

The learned Counsel for the revisionist also cited before me a ruling if Hon''ble Supreme Court in the ease of Birjoo Prasad Vs. State of U.P., in which the following observations have been made:

To attract the provisions of Section 3(2)(v) of the Act, the sine qua non is that the victim should be a person who belongs to a Scheduled Caste or a Scheduled Tribe and that the offence under the Indian Penal Code is committed against him on the basis that such a person belongs to a Scheduled Caste or a Scheduled Tribe. In the absence of such ingredients, no offence u/s 3(2)(v) of the Act arises.

It is thus clear that the main ingredient of the offence punishable u/s 3(2)(v) of the Act is that the offence must be committed on the basis that victim was a member of scheduled caste. This allegation does not find place either in the F.I.R. or in the statement of the witnesses u/s 161 Cr.P.C. and so there was no material before the learned Special Judge to frame charge against accused u/s 3(2)(v) of the Act. The charge framed by him u/s 3(2)(v) of the Act is therefore, liable to be set aside. The learned A.G.A. also conceded this legal position.

The revision is, therefore, allowed and the charge framed on 10.6.2003 by the learned Special Judge (S.C./ST Act.), Jhansi against the accused -revisionist u/s 3(2)(v) of the Act in Session Trial No. 39 of 2003 is set aside. The trial of the case shall proceed against the accused under Sections 302 and 307 I.P.C. Only. The trial court shall proceed with the trial of the case expeditiously.