Raj Kumari v. Sushil Sharma and others) under Sections
Case Details
Neutral Citation No. - 2023:AHC:163467 Court No. - 84 Case :- CRIMINAL APPEAL No. - 6960 of 2023
Legal Reasoning
Appellant :- Sushil Sharma And 2 Others Respondent :- State of U.P. and Another Counsel for Appellant :- Ashutosh Kumar Mishra,Sanjay Kumar Dwivedi Counsel for Respondent :- G.A.,Puneet Srivastava Hon'ble Mrs. Sadhna Rani (Thakur),J. Heard learned counsel for the appellants, learned counsel for the opposite party no.2 and perused the record. The present appeal has been preferred against the order dated 26.04.2023 passed by the Special Judge SC/ST Act, Aligarh in Complaint Case Case No.126 of 2022 (Raj Kumari Vs. Sushil Sharma and others) under Sections 379, 323, 504, 506 I.P.C. and Section 3(1) (r) of SC/ST Act, Police Station Gonda, District Aligarh, whereby the appellants have been summoned to face trial under aforesaid sections. It is argued by the learned counsel for the appellants that appellant no.3 himself belongs to the SC/ST community so the sections of SC/ST Act cannot be invoked against him. It is further argued that the present complaint has been filed in counterblast of an FIR, which was lodged by appellant no.1 Shushil Sharma against Omprakash, the husband of the opposite party no.2 and three other persons regarding incident dated 08.08.2022, whereby it was alleged that at 8:00 p.m. when Sushil, the first informant was going towards his house and reached in front of the house of Omprakash, Omprakash, the husband of opposite party no.2 Rahul Kumar, Dinesh Kumar and Kishan Prashad in furtherance of their common intention came alongwith weapons and lathi danda in their hands and assaulted Sushil Kumar. Rahul assaulted him on his head with the butt of pistol and rest persons assaulted him with lathi danda. When his son Hemant Kumar, who was with him, tried to save him he was also thrashed by the named accused persons. The stones were also pelted and when the persons came to rescue them the accused persons made good their escape by giving threat of life. The injured/ first informant was sent for the treatment. It is submitted that as with regard to the incident dated 08.08.2022 this FIR was lodged next day on 09.08.2022 and in the counterblast of this FIR regarding the same incident dated 08.08.2022 an application under Section 156(3) Cr.P.C. was moved by the opposite party no.2 on 18.08.2022. This application was treated as complaint and after statements of the complainant and three witnesses vide impugned order the appellants have been summoned to face trial under aforesaid sections. No medical has been placed before the Court. The witnesses Badan Singh and Pramod mentioned in the complaint have not been produced in the Court. The husband of the opposite party no.2 was challaned by the police under Sections 151, 107, 116 Cr.P.C. on 10.08.2022, hence, the incident is said to be false and the prayer is made to set aside order dated 26.04.2023 above. Learned counsel for opposite party no.2 opposed the prayer and submitted that appellant no.3 had to pay Rs. 10,000/- of the opposite party no.2 and on demand, this incident took place. As the mother of the appellant no.3 is Gaon Pradhan, so the FIR of the opposite party no.2 could not be lodged and her husband was challaned under Sections 151, 107 and 116 Cr.P.C. by the police on 10.08.2022, hence, the prayer is made to dismiss the appeal. It is an admitted fact that appellant no.3 belongs to the same community of SC/ST, so the offence under Section 3(1) (r) of SC/ST Act cannot be said to be made out against him. So far as an offence under Section 3(1) (r) of SC/ST Act against appellant no.1 and 2 is concerned, as per the version of the complaint the incident took place inside the shop of the first informant and it is nowhere said that public persons were present when the appellants hurled caste based abuses to the opposite party no.2 or her husband. The witnesses are said to have come after hearing hue and cry of the first informant and her husband, which means that the witnesses came when the incident had already taken place. Thus the incident took place inside the shop and at the time of hurling caste based words any member of public was inside the shop is not the version of the FIR. Otherwise also, admittedly this dispute arose when the first informant demanded her Rs. 10,000/- from appellant no.3. Thus all the dispute and the caste based words can be said to be used only because of the dispute regarding Rs. 10,000/-. These caste based word cannot be said to be used because of the opposite party no.2 belongs to SC/ST community. So far as summoning under Sections 379, 323, 504, 506 I.P.C. is concerned, it is said that it was a counterblast case. Admittedly, an FIR regarding incident dated 08.08.2022 was lodged by the appellant no.1 on 09.08.2022 and admittedly challan of the husband of the opposite party no.2 was done by the police on 10.08.2022 under Sections 151, 107, 116 Cr.P.C. regarding incident dated 08.08.2022. With respect to the FIR (Case Crime No.238 of 2022) lodged by Sushil Sharma (appellant no.1) two persons were said to have injured and as per medical of those two injured persons the injuries inflicted to them were found to be simple. The FIR of the appellant no.1 and the complaint of the opposite party no.2 are said to have lodged regarding the same incident dated 08.08.2022. It is the version of the opposite party no.2 that as the mother of appellant no.3 was the Gaon Pradhan, so the report of the opposite party no.2 was not written at the police Station and she was compelled to file an application under Section 156(3) Cr.P.C. in the Court and consequently this complaint was lodged on the basis of her application under Section 156(3) Cr.P.C. Thus, the dispute between the parties on 08.08.2022 is an admitted fact, regarding which, the husband of opposite party no.2 is said to have challaned by the police. The injuries inflicted to family members of the appellants are found to be simple. Who was the aggressor and who was the defender shall be decided at the time of trial of the case. As the incident dated 08.08.2022 is admitted by the parties, so in the opinion of the Court, the summoning with regard to Section 379, 323, 504, 506 I.P.C. is not liable to be set aside. The appeal is allowed partly. The summoning order of the appellants under Section 3(1) (r) of SC/ST Act is hereby set aside. Appeal with regard to summoning under Section 3(1) (r) of SC/ST Act is allowed. The appeal with regard to summoning under Sections 379, 323, 504, 506 I.P.C. is, however, dismissed. The summoning order with regard to sections of IPC is hereby confirmed. Order Date :- 11.8.2023 Radhika Digitally signed by :- RADHIKA VISHWAKARMA High Court of Judicature at Allahabad