Allahabad High Court
Brij Kishor @ Brij Kishor Shukla ... vs State Of U.P. And Another on 22 February, 2021
Bench: Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 77
Case :- APPLICATION U/S 482 No. - 17026 of 2020
Applicant :- Brij Kishor @ Brij Kishor Shukla And 2 Others
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Pramod Kumar
Counsel for Opposite Party :- G.A.
Hon'ble Pankaj Bhatia,J.
Present application has been filed challenging the order dated 22.6.2019 and 23.12.2019 passed by Special Judge, SC/ST Act, Kanpur Nagar in SST No. 318 of 2008 (State Vs. Brij Kishore & others) whereby the application for discharge of the applicants under Section 307 IPC has been rejected.
Counsel for the applicants argued that no charge could have been framed against the applicant under Section 307 IPC as well as 3 (2)(5) of the SC/ST Act. In support of his contention, he argues that as there was no pellet injuries, it cannot be said that ingredients of Section 307 IPC were available so as to frame charges under Section 307 IPC. On that ground, the discharge application was made. The concerned Court below while dealing with the said application has rightly recorded that for framing charges under Section 307 IPC, it is not essential that pellet injuries should exist. The requirement of Section 307 IPC is that there should be enough material to indicate that there is an attempt to murder. The Court below has relied upon the medical report, which is on record.
I have also perused the same and it cannot be said that keeping in view the medical report that charges framed under Section 307 IPC was improper exercise of power. Accordingly, no error can be found in the impugned order with regard to dismissal of the application for dropping the charges under Section 307 IPC.
As regards the charges under Section 3 (2)(5) of the SC/ST Act, the counsel for the applicant argues that charge under Section 3 (2)(5) of the SC/ST Act could not have been maintained in view of the judgment of the Supreme Court in the case of Khuman Singh Vs. State of Madhya Pradesh, AIR 2019 Supreme Court 4030, wherein the Supreme Court has observed in paragraph 13 as follows:
"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 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."
I have perused the FIR in question wherein the specific averment has been made that the accused came for causing the offence and, in fact, uttered caste related words which sufficiently indicate that knowledge of the accused with regard to caste of the informant, as such, it cannot be said that framing of the charges under Section Section 3 (2)(5) of the SC/ST Act is an improper exercise of power.
No good ground is made out for interference against the orders, as such, the application is liable to be dismissed.
Accordingly, the application is dismissed.
Order Date :- 22.2.2021
vinay
