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2018 DIGILAW 181 (ALL)

SUBHASH TEWARI v. STATE OF U. P.

2018-01-23

DINESH KUMAR SINGH I

body2018
JUDGMENT : Hon'ble Dinesh Kumar Singh-I,J. 1. This criminal revision has been filed against the order dated 1/10/2007 passed by the Special Judge, SC/ ST Act, Mirzapur in Sessions Trial Number 71 of 2002 (State vs Subhash Tewari and others) arising out of crime No. 64-A of 2000, under sections 323, 308 and 504 IPC and section 3 (1) (x) of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, PS Madihan, District Mirzapur, whereby the objections raised by the revisionist - accused were overruled and finding the evidence sufficient to frame charges, the charges under sections 323, 308 and 504 IPC and section 3 (1) (x) SC/ST Act were framed against the revisionist. 2. The ground set up by the revisionist is that the learned Court below has framed the charge under section 3 (1) (x) of SC/ST Act merely on the presumption that the revisionist belonged to 'Kol' cast without there being any cogent evidence. The said order has been passed in a routine manner, mechanically without applying judicious mind on the basis of declaration of caste by tehsildar made on the basis of seeing residential activities/family status. Apart from it, it was also argued that the injuries contained in the injury memo would not constitute an offence under section 308 IPC as they were of simple nature. 3. Heard the arguments of the learned counsel for the revisionist Shri Prakash Dwivedi and the learned AGA at length and perused the record. 4. As per F.I.R. the opposite party number 2 (wife of the injured, Rajwanti Devi) the accused revisionist with two other unknown persons gave a beating to her husband Lallan Kol 2 by a rod who was travelling in the Jeep of revisionist because he could pay only Rs. 10/- instead of Rs. 12/- as fare and was also intentionally insulted and humiliated as a member of scheduled caste within public view. After submission of charge- sheet, the accused revisionist was given opportunity of being heard at the stage of framing of charge against him. From his side written objection dated 13/1/2005 was submitted stating therein that the injured belonged to ''Lohar' caste and not ''Kol' caste because certificate issued by tehsildar was not to be relied upon as it was issued on the basis of his customs and living, nor offence under section 308 IPC was made out on the basis of injury memo. From his side written objection dated 13/1/2005 was submitted stating therein that the injured belonged to ''Lohar' caste and not ''Kol' caste because certificate issued by tehsildar was not to be relied upon as it was issued on the basis of his customs and living, nor offence under section 308 IPC was made out on the basis of injury memo. On this basis it was a stated on his behalf that the charges under section 3 (1) (x) SC/ST Act and 308 IPC were not made out, hence he should be discharged under those sections. 5. Upon consideration of the matter the learned Court below passed the impugned order, in which it has recorded that on the basis of evidence on record he has found that the injured belonged to ''Kol' caste, hence he would be taken to be member of scheduled caste and accordingly framed the charges under sections 323, 308 and 504 IPC and section 3 (1) (x) SC/ST Act. 6. I have gone through the record. Four injuries have been recorded in the injury memo to have been caused to the husband of the first informant (injured). There is a certificate on record issued by tehsildar to the effect that injured belonged to 'Kol' caste. As per this section 3 (1) (x) SC/ST Act, if a person, not being a member of a scheduled caste or a scheduled tribe, intentionally insults or intimidates with intent to humiliate a member of a scheduled caste or a scheduled tribe in any place within public view, he shall be punished with imprisonment for a term which shall not be less than 6 months but which may extend to 5 years and with fine. Nothing has been shown by the learned counsel for the revisionist that a person belonging to ''Kol' caste does not qualify for the category of scheduled caste. Assailing the certificate issued by tehsildar on erroneous basis cannot be looked into by this Court at the stage of revision against charge framed as it requires in-depth analysis of the evidence collected by the investigating officer in this regard which is possible only when prosecution is allowed to lead evidence on the point, veracity of which would be judged on the touchstone of cross-examination made by the defence. Similarly, offence under section 308 IPC defines an offence under the said Act as "whoever does any act with such intention or knowledge and under such circumstances that, if he by that act caused death, he would be guilty of culpable homicide not amounting to murder, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if hurt is caused to any person by such act, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine or with both. It is clear from evidence on record that the injured has received four injuries, which are alleged to have been caused by rod, it could not be held at the stage of charge that the assailant did not have knowledge or intention that such injuries could cause death of the injured without the prosecution being allowed to lead evidence and its assessment made by Court in the light of cross-examination by defence. 7. The object of framing charge is to give notice of the essential facts which the prosecution proposes to establish to bring home the charge to the accused so that he may not be prejudiced in his defence. The charge may not contain elaborate details but there should be no doubt left in the mind of the accused as to what is the case against him and what allegations he has to meet. At this stage, even a very strong suspicion upon the material before Magistrate or Judge which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged, may justify framing of the charges against the accused in respect of the commission of that offence. While exercising the power the Judge is not required to record his reasons for framing the charge against the accused. The order should disclose ex facie that the Court had not proceeded mechanically in framing the charge merely because accusation had been made by the prosecution against the accused persons but that it had looked into the material brought on record till then. An order of refusal to discharge the accused is not required to be supported by reasons. At the stage of framing charge, evidence is not to be weighed meticulously. An order of refusal to discharge the accused is not required to be supported by reasons. At the stage of framing charge, evidence is not to be weighed meticulously. Even a strong suspicion founded upon material and presumptive opinion would be sufficient for the Court to frame charges against the accused. It is not open to the Court at this stage to evaluate the material to bring home the guilt of the accused. It is sufficient if the material on record supports a triable case. The Court is not expected to go into the probative value of the material on record, nor is required to discuss every material placed before it by police along with the charge- sheet. 8. This Court does not find any infirmity in the impugned order. The revision deserves to be dismissed and is accordingly dismissed. The interim stay stands vacated. The office is directed to transmit a copy of this order to the Court concerned for expeditious disposal of the case.