Allahabad High Court
Atul Tiwari And 2 Others vs State Of U.P. And Another on 14 October, 2019
Author: Rajiv Gupta
Bench: Rajiv Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 71 Case :- CRIMINAL APPEAL No. - 3321 of 2019 Appellant :- Atul Tiwari And 2 Others Respondent :- State Of U.P. And Another Counsel for Appellant :- Tarun Kumar Tripathi Counsel for Respondent :- G.A.,Laxmi Narayan Rathour Hon'ble Rajiv Gupta,J.
Heard Shri Vivek Shandilya, Senior Advocate assisted by Shri Manish Pandey on behalf of the appellants, learned A.G.A. for the State and Shri Laxmi Narayan Rathour, learned counsel for Opposite Party No.2 as well as perused the record.
This criminal appeal has been filed by the appellants challenging the order dated 30.03.2019 passed by IInd Additional District & Sessions Judge/Special Judge (SC/ST) Act, Jalaun at Orai in Sessions Trial No.134 of 2017, (State Vs. Manoj Dubey) arising out of Case Crime No.825 of 2016, under Sections 323, 504, 506 I.P.C. and Sections 3(1)(Da) & 3(1)(Dha) of SC/ST Act, P.S. Jalaun, District- Jalaun, by which the appellants have been summoned to face trial.
Learned counsel for the appellants has submitted that the appellants were named in the FIR and specific role of assault and abusing the first informant Smt. Roopa Devi with the name of her caste with an intention to humiliate and intimidate her in public view has been alleged. On account of assault made by the appellants, Dinesh Kumar, Sanjeev Kumar and Roopa Devi have suffered injuries on their persons and have been medically examined. The statements of injured victims were recorded during the course of investigation who reiterated the prosecution story. However, the Police after investigation, submitted the charge-sheet only against the co-accused Manoj Dubey and the other appellants were exonerated by the Investigating Officer. On the basis of the charge-sheet submitted against the co-accused Manoj Dubey, the trial proceeded. The statements of victims Roopa Devi and Dinesh Kumar have been recorded as P.W.-1 & P.W.-2 respectively, in which, they have categorically stated that on 14th November, 2016 at about 10:00 AM, while P.W.-1 Roopa Devi was irrigating her field, the appellants Atul Kumar, Manoj Dubey, Ramakant and Santosh Dikshit entered in her field and insisted that they will irrigate their field first only then she may irrigate her field. On being asked to refrain from doing illegal acts, the appellants abused the victim with the name of her caste with an intention to humiliate and intimidate her in public view and further appellants assaulted her by lathi, danda, kicks and fists and tried to outrage her modesty and on alarm being raised by her, her husband Dinesh Kumar, Jeth Sanjeev Kumar, brother-in-law Sunil Kumar and mother-in-law Smt. Rajshree rushed to rescue her, then they were also assaulted who suffered injuries on their person. The appellants left the place of incident threatening her not to lodge any FIR. In the said incident, victim Roopa Devi, her husband and Jeth namely; Dinesh Kumar and Sanjeev Kumar have suffered injuries and have been medically examined.
P.W.-2 Dinesh Kumar, who is the husband of victim Roopa Devi has also categorically stated that the appellants abused the victim with the name of her caste with an intention to humiliate and intimidate her in public view and also assaulted her by lathi, danda, kicks and fists, due to which, she has suffered injuries on her person. On alarm being raised by her, they had rushed to the place of incident to rescue her and they were also assaulted by the appellants, due to which, they suffered injuries on their persons and have been medically examined.
On the basis of the said evidence adduced by the two witnesses, the Opposite Party No.2 moved an application under Section 319 CrPC stating therein that on the basis of the evidence adduced before the trial court, the appellants are also involved in the present incident and have actively participated in the said incident, but has illegally been exonerated by the Investigating Officer as such, the appellants be also summoned to face trial. On the basis of the said application, the trial court after hearing the counsel, passed the impugned order holding that from the evidence adduced by P.W.-1 and P.W.-2 and looking to the injuries suffered by the respective victims, offence is clearly made out against the appellants and as such, they too have been summoned to face trial under Sections 323, 504, 506 I.P.C. and Sections 3(1)(Da) & 3(1)(Dha) of SC/ST Act.
Learned counsel for the appellants has submitted that the appellants are wholly innocent and no specific allegation was made against them of assaulting the victims and addressing them with the name of their caste with an intention to humiliate and intimidate them in public view therefore, they cannot be summoned by exercising the power under Section 319 CrPC and as such the impugned order is bad in the eyes of law and be set aside.
Learned counsel for the appellants, in support of his contention, has relied upon the decision of the Hon'ble Apex Court reported in 2019 Supreme (SC) 771 Shiv Prakash Mishra Vs. State of Uttar Pradesh and Another and stated that in view of the law laid down in the said case, the appellants could not have been summoned to face trial and the impugned order is wholly illegal and liable to be set aside.
Per contra, learned A.G.A. has drawn the attention of the Court to the statement of the witnesses recorded as P.W.-1 Roopa Devi and P.W.-2 Dinesh Kumar, who have categorically stated that on account of dispute of irrigation of field, the appellants abused the victim with the name of her caste with an intention to humiliate and intimidate her in public view. On being asked to refrain from abusing, the appellants assaulted the victims, due to which, Roopa Devi along with her husband Dinesh Kumar, Jeth Sanjeev Kumar have suffered injuries and have been medically examined. The injuries sustained by the said three victims have also been pointed out and on the basis of the said evidence adduced before the trial court, learned A.G.A. and learned counsel for Opposite Party No.2 have supported the impugned order.
Having considered the rival contentions and on perusal of the material on record, I find that the specific role of assaulting the victim and abusing her with the name of her caste with an intention to humiliate and intimidate her in public view has been assigned to the appellants. The victims are said to have been assaulted by lathi, danda and kicks and fists and on account of assault made by the appellants, the victims have suffered injuries and have been medically examined. At this stage, the gravity and seriousness of the injuries on their persons cannot be considered and moreover the said injuries cannot be said to be self inflicted and manipulated when the evidence in this respect is yet to come.
It is further germane to point out here that if the said evidence led by the prosecution is not rebutted, may also lead to conviction of the appellants.
In view of the facts and circumstances of the case, I do not find any illegality in the impugned order, which is just, proper and legal and do not call for any interference by this Court at this stage.
This criminal appeal lacks merit and is accordingly dismissed.
However, in case the appellants appear and apply for bail, their bail application be considered and disposed of as expeditiously as possible after hearing both the parties.
Order Date :- 14.10.2019 Zafar