Sri Krishna and others vs State of U.P.and another

Ravindra Singh, J.—Heard Sri K.P. Shukla, learned Counsel for the applicants and the learned A.G.A. for the State of U.P.

This application has been filed by the applicants Sri Krishna, Satish Chandra, Anshu, Pandit Parshu with a prayer to quash the chargesheet No. 2 of 2009 dated 21.1.2009 in case crime No. 340 of 2008 under sections 323, 504 and 506 and section 3(1)(x) of SC/ST Act P.S. Rampura District Jalaun.

The facts in brief of this case are that the FIR of this case has been lodged by Mata Prasad on 23.11.2008 in respect of the incident which had occurred on 21.11.2008, the FIR was lodged in case crime No. 340 of 2008 under sections 323, 504, 506 and 3(1)(x) of SC/ST Act District Jalaun, in the said incident. Arvind and Mata Prasad has sustained injuries and they were medically examined on 22.11.2008 at P.H.C. Rampura District Jalaun, after investigation the chargesheet dated 21.1.2005 has been forwarded to the Court of learned Magistrate t concerned who has taken cognizance on 3.3.2009 being aggrieved from the chargesheet and the cognizance order dated 3.3.2009, the present application has been filed by the applicants with a prayer to quash the same.

It is contended by the learned Counsel for the applicants that on the basis of allegations made in the FIR no offence under section 3(1)(x) of SC/ST Act is made out because the provisions of section 3(1)(x) of SC/ST (Prevention of Atrocities) Act, 1989 was not attracted only because the first informant was belonging to the scheduled caste, after the offence under section 3(1)(x) of SC/ST (Prevention of Atrocities) Act, 1989 is not made out. The investigation done by the I.O is illegal and the learned Magistrate concerned has committed manifest error by taking cognizance of such chargesheet in support of this contention, the learned Counsel for the applicants cited the case of Ramdas and others v. State of Maharastra 2007 (2) SCC 170 = 2007 (57) ACC 471 (SC) = 2007 (49) AIC 418 decided by the Apex Court and emphasis has been given on paragraph 11 of the judgment which reads as under :

"11. At the outset we may observe that there is no evidence whatsoever to prove the commission of offence under section 3(2)(y) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, '' 1989. The mere fact that the victim happened to be a girl belonging to a Scheduled Caste does not attract the provisions of the Act. Apart from the fact that the prosecutrix belongs to Pardhi community, there is no other evidence on record to prove any offence under the said enactment. The High Court has also not noticed any evidence to support the charge under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and was perhaps persuaded to affirm the conviction on the basis that prosecutrix belongs to a Scheduled caste community.

The conviction of the appellants under section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, must, therefore, be set aside."

The next case cited by the applicant is Gorige Pentaiah v. State of A.P. and others, JT 2008 (9) SC 543 and emphasis has been given in para 8 which reads as under :

"In the instant case, the allegation of respondent No. 3 in the entire complaint is that on 27.5.2004, the appellant abused them with the name of their caste. According to the basic ingredients of section 3(1)(x) of the Act the complaint ought to have alleged that the accusedappellant was not a member of the Scheduled Caste or a Scheduled Tribe and he (respondent No. 3) was intentionally insulted or intimated by the accused with intent to humiliate in a place within a public view in the entire complaint, nowhere it is mentioned that the accusedappellant was not a member of the Scheduled Caste or a Scheduled Tribe and he intentionally insulted or intimidated with intent to humiliate respondent No. 3 in a place within public view. When the basic ingredients of the offence are missing in the complaint, then permitting such a complaint to continue and to compel the appellant to face the rigmarole of the criminal trial would be totally unjustified leading to abuse of process of law."

It is further contended by the learned Counsel for the applicants that the medical examination report are not reliable because the injured Arvind was medically examined on 22.11.2008 at 4.15 p.m., injured Mata Prasad on 22.11.2008 at 4.00 p.m. both have sustained injuries caused by hard and blunt object duration was about 1 day old, whereas according to the prosecution version injuries were caused on 21.11.2008 at about 12 O''clock day, according to the nature of the injuries, injury Nos. 3 and 4 of the injured Arvind were radish colour, contusion and the injury Nos. 1 and 2 of the injured Mata Prasad were blueish colour contusion, such injuries according to the medical jurisprudence may not be one day old because according to the medical jurisprudence of Modi the age of a bruise may be ascertained from the colour changes which its ecchymosed undergoes during absorption. These colour changes are due to disintegration of the red blood cells and staining of the thus set free haemoglobin by the action of enzymes from tissues. They commences at the periphery and extend inwards to the centre. They are red at first but during the next three days they appear blue, blueishblack, brown or livid red, and become greenish from the fifth to the sixth day, and yellow from the seventh to twelfth day. This yellow colour slowly fades in tint till the fourteenth or fifteenth day.

In the present case the injuries of injured Mata Prasad was blueish which shows that the injuries were about 3 day back. In such a situation no reliance can be placed by the said medical examination report for constituting the offence under section 323 I.P.C. Therefore, in such circumstances, the chargesheet filed against the applicant may be quashed.

In reply to the above contention it is submitted by the learned A.G.A. that in the present case on the basis of allegation made in the FIR in the statement recorded under section 161 Cr.P.C. prima facie offence under section 3(1)(x) of SC/ST Act is made out.

Section 3(1) (x) is read as under :

"3(1) whoever, not being a member of a Scheduled Caste or a Scheduled Tribe:

(x) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within a public view."

In the present case the first informant was bringing sugarcane loading on a truck to Umri Mills for sale purpose when he reached at the turning of Delpura, the applicants stopped his truck and they snatched sugarcanes but the first informant himself gave them 5 or 6 sugarcanes but they did not satisfy they were snatching t some more sugarcane for which they were denied then they abused him by saying when the first informant stopped not to abuse they beaten the first informant and his son Arvind, the first informant from the place of occurrence, to save his life, on hue and cry Amar Singh Kushwaha, Raju R/o Pachokhara came at the place of residence, and they intervened in the matter, then the applicant extended threats by saying the allegation made against the applicants are constituting the offence punishable under section 3(1)(x) of SC/ST Act. So far as the nature of the injuries sustained by the injured person is concerned, it is subjectmatter of the trial and on the basis of the material collected by the I.O. a prima facie offence under sections 323, 504 and 506 I.P.C. and section 3(1)(x) of SC/ST Act is made out. There is no illegality in the investigation of the case and there is no illegality in the submission of the chargesheet, the learned Magistrate concerned has also not committed any error in taking the cognizance, therefore, the prayer for quashing the chargesheet may be refused.

Considering the submission made by the learned Counsel for the applicants, learned A.G.A. for the State of U.P. and from the perusal of the record it appears that after completing the investigation, chargesheet dated 21.1.2009 in case of 34 of 2008 under sections 323, 504 and 506 I.P.C. and section 3(1)(x) of SC/ST Act has been submitted on which the learned Magistrate concerned has taken cognizance on 3.3.2009, the allegation made against the applicants are prima facie disclosing the offence under sections 323, 504 and 506 I.P.C. and section 3(1)(x) of SC/ST Act has been made out. The cases cited by the applicants are not applicable in the present case. The allegation made against the applicant are of different in nature, the learned Magistrate concerned has not committed any error in taking the cognizance, so far as the duration of the injuries are concerned, at this, stage is genuineness may not be tested, it may be tested at the stage of the trial.

There is no illegality in the submission of the chargesheet, therefore, the prayer for quashing the same is refused.

However, considering the facts and circumstances of the case, it is direction that the applicants shall appear before the Court concerned within 25 days from today, N.B.W. issued against the applicant shall be kept in abeyance.

In case the applicants apply for bail, the same shall be heard and disposed of expeditiously on the same day by the Courts below.

With the above direction, this application is finally disposed of.