Hon'ble Mrs.Vijay Lakshmi, J.
(By Hon'ble Mrs. Vijay Lakshmi, J.) This is an appeal under Section 372 Cr.P.C. filed by the complainant against the judgment dated 31.07.2014 passed by Special Judge, S.C./S.T. Act, Etah whereby learned trial court has acquitted the accused-respondents no. 2 and 3 from the charges under Sections 307 read with Section 34, 504 IPC and 3(2)(v) of S.C./S.T. Act.
We have heard learned counsel for the complainant and learned A.G.A. on the point of admission and have carefully perused the record.
Brief facts of the case are that an F.I.R. was lodged by the complainant/appellant, Ram Chandra against two persons Rajesh and Bhoora, alleging that on 20.1.2001 at about 5.30 P.M. complainant's elder son Pravesh Kumar and one Abhinandan, resident of same village were going to the field to attend the call of nature. As they were sharing some light hearted conversation they were laughing while going to the fields. Accused Rajesh who saw them laughing thought that they were laughing on him. He intercepted their way and asked them as to why they were making a mockery of him and abusing him. The complainant's son replied that they were not abusing him. Hearing this, Rajesh slapped the complainant's son who returned home while weeping and narrated the entire incident to the complainant. When complainant asked Rajesh why he slapped his son, he started abusing him too. Hearing the noise accused Bhoora reached there and exhorted with the words "MAARO SALE KO GOLI JAYADA BANTA HAI". Thereafter, Rajesh fired from a country made pistol which he was carrying with him, due to which the complainant sustained injury in his left hand. After the occurrence, both the accused persons ran away from the spot. Witnesses Naresh and Rajendra had seen the whole incident.
On the basis of this written report, initially the case was registered under Sections 324, 504 IPC and Section 3(1)X of S.C./S.T. Act, but after investigation the police submitted charge sheet under Sections 307, 504 IPC and 3(2)(v) of S.C./S.T. Act against both the accused persons.
The trial court after hearing both the parties and after examining the evidence adduced by the prosecution, came to the conclusion that there is material contradiction between the statement of witnesses and the FIR version regarding the seat of injury because according to the FIR, the gun shot had hit the left arm of the complainant whereas according to the medical report, seat of injury is his left shoulder; the complainant has got him medically examined twice without any reason; there is no independent witness of the occurrence; the witnesses named in the FIR have not been produced by the prosecution. Considering all these facts, the trial court held that the prosecution has failed to prove its case against the accused persons beyond doubt. The court below also came to the conclusion that there is no evidence on record with regard to charge under Section 3(2)(v) of S.C./S.T. Act and accordingly it acquitted both the accused persons/respondents no. 2 and 3 of the aforesaid charges.
Having heard learned counsel for the appellant, Sri Vikram Singh, learned A.G.A. appearing for the State and after scrutinizing the judgment impugned in this appeal, we do not find any illegality or infirmity in the conclusions drawn by the trial court. The reasons are as under:-
The prosecution in this case has examined only two witnesses of fact who are highly interested and inimical witnesses. Complainant Ram Chandra is P.W. 1 and his son Pravesh Kumar is P.W. 2. There appears material contradiction in the statement of P.W. 1 regarding the manner of occurrence as P.W. 1 has stated that Bhoora and Rajesh both inflicted firearm injury on him, whereas in the FIR, which is also written by P.W. 1-Ram Chandra, there is clear mention that accused Rajesh had fired by country made pistol on exhortation of accused Bhoora. Moreover, in the FIR, P.W. 1-Ram Chandra has mentioned that he has sustained firearm injury in his arm, whereas doctor has found firearm injury on his left shoulder. Later on P.W. 1 has tried to improve his statement by stating that he sustained firearm injury on his left shoulder, but during his cross-examination, he has stated that fire had hit on his left 'armpit'. Thus, seat of injury is continuously shifted to the different places. In the cross-examination, P.W. 1 has admitted that in the FIR it has wrongly been written by him that fire had hit his left arm. P.W. 1 has stated that both the accused persons had opened fire upon him, but contrary to it, P.W. 2- Pravesh Kumar has stated that only Rajesh had fired on his father. P.W. 2-Pravesh Kumar has categorically stated that his father got injured by firearm injury inflicted by Bhoora whereas according to FIR it was Rajesh who has inflicted firearm injury. P.W. 2-Pravesh Kumar has also stated that a buffalo, tied in the courtyard had also sustained firearm injury and one fire hit at the wall of his house. This statement of P.W. 2 does not found support from any evidence oral or documentary.
In the FIR, the informant has clearly mentioned that Naresh and Rajendra residents of same village had witnessed the occurrence, but P.W. 2 has categorically stated that no villagers or no witness had come to the spot at the time of occurrence. According to P.W. 2- Naresh had not come to the spot to witness the occurrence.
The aforesaid contradictions cannot be termed as minor contradiction, but these are material contradictions which shroud the prosecution case with serious doubts.
The motive behind the occurrence is also very weak as no one will kill a person only on the ground that he has made a complaint to him about his son slapping the complainant's son.
Keeping in view the aforesaid discrepancies, omissions, embellishment and improvements in the statements of two highly interested witnesses, the prosecution case becomes doubtful and learned lower court has rightly disbelieved it.
So far as charge under Section 3(2)(v) of S.C./S.T. Act is concerned, in the present case there is no evidence at all to the effect that the appellants had committed the offence alleged against them on the ground that injured is the member of Scheduled Castes or Scheduled Tribes. To attract the provision of Section 3(2)(v) of the Act, sine-qua-non is that the victim should be a person who belong to the Scheduled Castes or Scheduled Tribes and the offence is committed against him due to the reason that such a person belong to Scheduled Castes or Scheduled Tribes. In absence of such ingredients, no offence under Section 3(2)(v) of the Act arises. The Apex Court in the case of Masumsha Hasnqsha Muslman v. State of Maharashtra, AIR 2000 SC 1876 has set aside the judgment of Maharashtra High Court by holding that the High Court had missed the essence of this aspect and under these circumstances, the conviction under Section 3(2)(v) of S.C./S.T. Act by the trial court as well as High Court ought to be set aside. In the case of Dinesh Alias Buddha Vs. State of Rajasthan, (2006) 3 Supreme Court Cases 771, the Apex Court has reiterated the law on this point by holding as under:-
"15. Sine qua non for application of Section 3(2)(v) is that an offence must have been committed against a person on the ground that such person is a member of the Scheduled Castes or the Scheduled Tribes. In the instant case no evidence has been led to establish this requirement. It is not the case of the prosecution that the rape was committed on the victim since she was a member of a Scheduled Caste. In the absence of evidence to that effect, Section 3(2)(v) has no application."
The learned lower court has rightly acquitted the accused-respondents keeping in view the aforesaid facts and circumstances and there appears no reason to interfere in the finding of acquittal recorded by the trial court.
In a catena of judgments the Hon'ble Supreme Court has held that even where two views are reasonably possible from the very same evidence, appellate court should not reverse the judgment of acquittal by trial court viz. C. Antony v. K.G. Raghavan Nair AIR 2003 SC 182, (2003) 1 SCC 1; Chandrappa v. State (2007) 4 SCC 415, 2007 Cr.LJ 2136; K. Prakashan v. P.K. Surenderan, (2008) 1 SCC 258; and T. Subramanian v. State of Tamil Nadu, (2006) 1 SCC 401.
In this view of the matter, there is no merit in the application for leave to appeal which is liable to be rejected and is hereby, rejected. Consequently, the appeal is also dismissed.
Dated: 13.10.2014 RCT/-