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2023 DIGILAW 933 (ALL)

Shashikant Sharma v. State of U. P.

2023-04-06

GAJENDRA KUMAR

body2023
JUDGMENT Gajendra Kumar, J. Heard Shri Manish Tiwary, learned Senior Advocate assisted by Shri Pankaj Kumar Shukla, learned counsel for the appellants, Shri Swetashwa Agarwal, learned counsel for the opposite party no.2 and learned A.G.A. for the State. 2. This appeal has been preferred under section 14 A (1) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (hereinafter referred as SC/ST Act) against the judgment and order dated 14.03.2023, passed by the learned Special Judge SC/ST (PA) Act, Hathras, in Session Case No.228 of 2021 (State v. Shashikant and others) arising out of Case Crime No.218 of 2017, under Section 147, 148, 149, 323, 307, 504 I.P.C. and section 3(2)(5) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, P.S. Sahpau, District Hathras, whereby, the application filed by the appellants for discharge, has been rejected. 3. It has been argued by learned counsel for the appellants that the impugned order is against facts and law thus, liable to be set aside. The respondent No.2. has lodged an FIR against the appellants and other accused persons making false and baseless allegations. It is further submitted that there is a cross-version of this FIR and the present FIR has been lodged as a counterblast to the earlier one which was lodged from the appellants side. It is also submitted that the injury report of the injured is fake and concocted as the opinion formed by the Neutral Citation No. - 2023:AHC:74326 doctor about the same. The allegation that appellants have abused one Virendra who was an activist of the informant's party by using caste indicative words and assaulted him, is thoroughly false. Referring to the facts of the matter, it was submitted that no prima facie case is made out against appellants and thus, the trial court committed error by rejecting the discharge application of the appellants. 4. Learned A.G.A. and learned counsel for the opposite party no.2 have vehemently opposed the appeal and argued that there is no illegality or perversity in the impugned order. In the FIR as well as in the statement of witnesses recorded during investigation, there are allegations that appellants-accused have assaulted and abused them by using caste indicative words. 5. I have considered rival submissions and perused record. 6. In the FIR as well as in the statement of witnesses recorded during investigation, there are allegations that appellants-accused have assaulted and abused them by using caste indicative words. 5. I have considered rival submissions and perused record. 6. It is well settled that at the stage of framing of charge or considering discharge application, the court is not to analyse reliability of the material on record. The evidentiary value and its credibility has to be considered at the stage of trial. Marshalling and appreciation of evidence is not in the domain of the court at that point of time. At the stage of consideration of an application for discharge, the court has to proceed with an assumption that the material brought on record by prosecution is true and such material and documents have to be considered with a view to find out whether the facts emerging from such material when taken at their face value disclose the existence of all the ingredients constituting the offence. 7. In State of Bihar v. Ramesh Singh [ (1977) 4 SCC 39 ], considering the scope of Sections 227 and 228 of the Code, it was held that at the stage of framing of charge it is not obligatory for the Judge to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. At that stage, the court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion, at the initial stage of framing of charge, is sufficient to frame the charge and in that event it is not open to say that there is no sufficient ground for proceeding against the accused. 8. In Superintendent and Remembrancer of legal Affairs, West Bengal v. Anil Kumar Bhunja & Ors. [ (1980) 1 SCR 323 ], the Apex Court held that the Magistrate at the stage of framing charges had to see whether the facts alleged and sought to be proved by the prosecution prima facie disclose the commission of offence on general consideration of the materials placed before him by the investigating police officer. 9. [ (1980) 1 SCR 323 ], the Apex Court held that the Magistrate at the stage of framing charges had to see whether the facts alleged and sought to be proved by the prosecution prima facie disclose the commission of offence on general consideration of the materials placed before him by the investigating police officer. 9. In State of Maharashtra v. Priya Sharan Maharaj and Others [ (1997) 4 SCC 393 ] it was held that at Sections 227 and 228 Cr.P.C. stage the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The court may, for this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case. 10. In State of Delhi v. Gyan Devi and Others [ (2000) 8 SCC 239 ], the Hon'ble Supreme Court reiterated that at the stage of framing of charge the trial court is not to examine and assess in detail the materials placed on record by the prosecution nor is it for the court to consider the sufficiency of the materials to establish the offence alleged against the accused persons. 11. It is apparent from the above discussed decisions of Hon'ble Apex Court that at the stage of charge there can only be limited evaluation of materials and documents on record. At the stage of charge or consideration of an application for discharge, the court has to proceed with an assumption that the material brought on record by prosecution is true and such material and documents have to be considered with a view to find out whether the facts emerging from such material when taken at their face value disclose the existence of all the ingredients constituting the offence. 12. In the instant case, it is apparent that in the FIR there are allegations against the appellants that on 08.02.2017 when the informant and and his son were campaigning for a party, the appellants along with other accused persons ambushed and armed with firearm weapons intercepted them on the way and opened fire upon the informant's son due to which he sustained injuries. It is also alleged that when the informant and other members of his side tried to stop them, the appellants and other accused persons assaulted the informant and other persons of his side. It is also alleged that the appellants have abused one Virendra by using caste indicative words and assaulted him. As per the injury report of the injured, it is also apparent that there are two injuries caused by the appellants to the opposite party no.2 which are as per doctor opinion could have been caused by gunshot. The injured has supported the said version in his statement under Section 161 CrPC. The witnesses examined under Section 161 CrPC have also supported the said version. It is clear that Trial court has considered the entire facts and position of law and dismissed discharge application of appellants. In view of material on record it cannot be said that no prima facie case for charge is made out against appellants. The instant criminal appeal has no substance and thus, liable to be dismissed. 13. However, considering facts of the matter, the appellants are directed to appear before the court concerned and apply for regular bail and their bail application shall be decided expeditiously in accordance with law. 14. Appeal is dismissed.