Allahabad High Court
Smt. Chhaya And 3 Others vs State Of U.P. And Another on 11 August, 2023
Bench: Sadhna Rani (Thakur)
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:163189
Court No. - 84
Case :- CRIMINAL APPEAL No. - 5748 of 2023
Appellant :- Smt. Chhaya And 3 Others
Respondent :- State of U.P. and Another
Counsel for Appellant :- Satyendra Narayan Singh,Pankaj Kumar Mishra
Counsel for Respondent :- G.A.
Hon'ble Mrs. Sadhna Rani (Thakur),J.
Heard learned counsel for he appellants, learned A.G.A. and perused the record.
No one has put in appearance on behalf of opposite party no.2 despite of sufficient service.
This is an appeal under Section 14A(1) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 against the order dated 19.10.2022 passed by the Special Judge SC/ST Act, Etawah in Session Trial No.1902 of 2022 (State Vs. Kunal and others) arising out of Case Crime No.479 of 2021, under Sections 323, 504, 506, 452 I.P.C., Section 3(1)r, s and 3(2) 5a of SC/ST Act, P.S.- Kotwali, District Etawah.
By impugned order, the Special Judge SC/ST Act, Etawah summoned the appellants to face trial under Sections 323, 504, 506, 452 I.P.C., Section 3(1)(r), 3(1) (s) and 3(2) (va) of SC/ST Act
It is argued by the learned counsel for the appellants that if we go through the FIR it is clear that the incident took place as a result of enmity between the parties. The caste based words are also said to have been used by the appellants. There is also an allegation of thrashing with batons against the appellants. It is the allegation that when the first informant/ opposite party no.2 entered in his house saving his life, he was chased and again he was thrashed inside the house. The witnesses came and save the first informant. Again a threat of life is said to have been given if the matter is reported to the police station.
It is submitted by the learned counsel for the appellants that these caste based words are not said to have hurled intentionally to insult and intimidate a member of a scheduled caste or scheduled tribe and when the insult is not intentional with intent to humiliate a member of a scheduled caste or scheduled tribe this Section 3(1) (r) and 3(1) (s) of SC/ST Act would not apply. Regarding Section 3(2) (va) of SC/ST Act also, it has been submitted that for this section it is not enough that the victim belonged to the scheduled caste or scheduled tribe, but the offence must have been committed by the appellants only because the first informant/ victim belonged to scheduled caste and the appellants knew the fact that the first informant/ victim belonged to SC/ST community. It is the clear version of the FIR that this incident took place because of the enmity of the previous dispute between the parties.
It is further submitted that the present FIR is a counterblast of an FIR lodged by appellant no.1 Smt. Chhaya, the wife of appellant no.2 Dinesh alias Bhure on 12.10.2021 regarding incident dated 09.10.2021 against Abhishek, Gaurav Chak, Shoaib, Shiv Kumar and this Abhishek is the same person, who has filed the present FIR and Shiv Kumar is his father. It is submitted that because of the FIR, which was lodged on 12.10.2021 in counterblast the present FIR has been lodged on 08.11.2021 by moving an application under Section 156 (3) Cr.P.C. showing the incident dated 08.10.2021. In FIR lodged by appellant no.1 Smt. Chhaya charge-sheet has been filed, thus, being a counterblast the whole incident is said to be false and the prayer is made to set aside the impugned order.
Learned A.G.A. opposed the prayer and submitted that this is the second incident. The first incident is also mentioned in the FIR, which was dated 05.10.2021, regarding which, a separate FIR was lodged.
From the perusal of the FIR, it is clear that there are two incidents mentioned therein, one is dated 05.10.2021, regarding which, a separate FIR is said to have been lodged and the present FIR is regarding incident dated 08.10.2021, wherein caste based words and abuses are said to have been hurled by the appellants. There is allegation of thrashing also against them and later on when the first informant entered into his house then inside the house also, he is said to have been thrashed, thus, as per the version of FIR, though, incident of hurling abuses and caste based words is said to have taken place outside the house but it is clear version of the FIR itself that this incident took place because of the enmity of the incident dated 05.10.2021 which makes it very clear that these caste based words and abuses were not hurled by the appellants because of the first informant/ victim belonging to scheduled caste or scheduled tribe community rather these caste based words and abuses were used because of the enmity of the incident dated 05.10.2021.
So far as the offence under Section 3(2) (va) of SC/ST Act is concerned, it is true that as per the language of the Act this section would come into light if the victim/ first informant belongs to SC/ST community only and the accused/appellant knowingly that the victim belongs to SC/ST community committed offence with this intent only. Though, as per the version of the FIR, the appellants are the residents of the same locality where the first informant resides but as per the judgment Hitesh Verma Vs. State of Uttarakhand and Anr., AIR 2020 Supreme Court 5584, the Apex Court opined that any offence under Section 3(2) (va) of SC/ST Act would be made out only if the offence is caused because of being the first informant or the victim of scheduled caste or scheduled tribe community only but the version of FIR clearly speaks that the incident took place because of enmity of the incident dated 05.10.2021, thus, the incident cannot be said to be taken place because of the first informant or the victim belonging to a scheduled caste or scheduled caste community only.
Hence, in the opinion of the Court, summoning with regard to offence under Section 3(1) (r) and 3(1) (s) of S.C./S.T. Act cannot be said to be a good order. The trial court misread the version of the FIR and the statements of the witnesses who nowhere stated in their statements that this offence under SC/ST Act was committed with the first informant or the victim because of their belonging to the SC/ST community only.
So far as offence under Sections 323, 504, 506 and 452 IPC is concerned, it is the version of the complainant and the witnesses under Section 161 Cr.P.C. that the incident of thrashing and giving threat allegedly took place with the first informant inside his house. The truthfulness of the allegation would be decided only after the evidence of the parties.
In the opinion of the Court, the appeal of the appellants deserves to be allowed partly.
The appeal is allowed partly. It is allowed with regard to taking cognizance under Section 3(1) (r) and 3(1) (s) and 3(2) (va) of SC/ST Act and it is dismissed with regard to taking cognizance under Sections 323, 504, 506 and 452 I.P.C. Thus, the cognizance order with regard to sections of SC/ST Act is set aside and the cognizance with regard to sections of IPC is hereby confirmed.
Order Date :- 11.8.2023
Radhika
