Zabir Mohammad and Another Vs State of U.P. and Another

Neutral Citation No. - 2025:AHC:103634

Court No. - 83

Case :- CRIMINAL APPEAL No. - 12241 of 2024

Appellant :- Zabir Mohammad And Another Respondent :- State of U.P. and Another Counsel for Appellant :- Abhishek Ankur Chaurasia,Diwan Saifullah Khan Counsel for Respondent :- G.A.

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Hon'ble Nalin Kumar Srivastava,J.

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The present criminal appeal under Section 14-A(1) Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act (in short 'the SC/ST Act') has been filed by the appellants - Zabir Mohammad and Golu @ Saif to set aside the impugned order dated 19.12.2022 passed by Special Judge, (SC/ST Act), Varanasi in Special Session Trial No. 1334 of 2022, arising out of case crime no. 14 of 2022, under Sections 323, 504, 506 IPC and Sections 3(1)(dha) & 3(2)(va) of the SC/ST Act, Police Station Manduadih, District Varanasi, whereby charges have been framed against the appellants under Sections 323/34, 325/34, 326/34, 504, 506 IPC and 3(1)(dha) & 3(2)(Va) of the SC/ST Act.

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Heard learned counsel for the appellants as well as the learned AGA for the State and perused the material available on record.

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The facts of this case, as unfolded in the F.I.R., are that the informant Virendra Sonkar, is a member of SC/ST community. On 25.1.2022 at about 09.30 p.m. while his brother Sachin Sonkar was coming to home from his shop at Sabzi Mandi, the accused persons Qaisar Mohammad, Golu @ Anwar and Jabir Mohammad hurled abuses to him and with common intention bitterly beaten him by kicks, fists and belt and extended threat for dire

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consequences. He received serious injury in his eye and other parts of body. F.I.R. was lodged and now charge sheet has been submitted into the matter. The trial court after perusing the evidence available in the case diary took cognizance of the matter.

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It is submitted by learned counsel for the appellants that they have been falsely implicated in this case. The essential ingredients to establish the alleged offences are lacking on the basis of evidence on record. It is further submitted that the injured of the said case was medically examined and no serious injuries were found upon his body. Medical evidence does not support the case of the informant. The present prosecution has been instituted with a malafide intention. The entire prosecution story is false and fabricated. Offence under Section 326 IPC is not made out against the appellants because no dangerous weapon was used in the commission of offence. There are contradictions in the statements of the informant and that of the witnesses recorded before the Investigating Officer under Section 161 CrPC. It is also submitted that from the evidence collected during investigation no offence under the SC/ST also is made out against the appellants. The police has also submitted charge sheet on the basis of insufficient evidence against the appellants. Learned counsel for the appellants pointed out certain documents and statements in support of his contention.

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The next argument advanced by the learned counsel for the appellants is that the I.O. of this case collected absolutely no evidence to the effect that the incident took place in any place within the public view and intentional insult or intimidation was made by the appellants. It is further submitted that there is not even an iota of evidence on record as collected by the I.O. that the appellants committed the alleged offence for the simple reason of

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the injured being a member of SC/ST community. It is also submitted that the appellants never hurled abuses to insult him by caste related remarks. The impugned order framing charges against the appellants suffers from infirmity and illegality warranting interference by this Court.

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Per contra, learned AGA vehemently opposed the present appeal and has submitted that offence in this case has been committed at a public place within public view by the present appellants. The injury report of the injured from informant's side also corroborates the prosecution version. It is further submitted that to establish the offence under Section 3(2)(va) of the SC/ST Act it is never required that the incident should have taken place at a place within public view. The impugned order does not suffer from infirmity, illegality, perversity or lack of judicial mind.

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I have considered the rival submissions made by the learned counsel for the parties and have gone through the entire record carefully.

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Before dealing with the submissions made by the learned counsel for the parties, it is desirable to quote the provisions of Section 326 IPC, which are as under :

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" 326. Voluntarily causing grievous hurt by dangerous weapons or means— Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance, or by means of any substance which it is deleterious to the human body to inhale,

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to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."

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It is settled that the specific body part affected by an injury is more crucial than the type of instrument or weapon used to cause it. In legal and forensic contexts, understanding the location of an injury is often key to determining its severity, potential cause, and the intent of the perpetrator. While the weapon used can provide clues, the injury's location on the body can be more significant factor in assessing the overall situation. In criminal law, the location and severity of injuries can be crucial in determining the appropriate charges and penalties. In essence, while the type of instrument or weapon can be informative, the injury's location on the body provides critical information for understanding the nature and severity of the harm inflicted.

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In the present matter in the F.I.R. itself it has been mentioned that the accused persons assaulted the injured with kicks, fists and belts and the injured received serious injuries particularly in his eye. In his statement under Section 161 CrPC the injured Sachin Kumar has supported the F.I.R. version and has further stated that due to the three people assaulting him with belts, his right eye got ruptured and started bleeding and when he reached home, vomiting of blood was started. They also hurled abuses with caste related remarks to him.

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The injured was medically examined at PHC RVP, Varanasi and injury in the form of "lacerated wound all area right eye six 5 cm x 5 cm colour radish" was found and the injured was referred to SSPG Hospital as a higher centre for eye expert for opinion and

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further treatment. It was also opined by the doctor that the injury was caused by some hard and blunt object. At SSPG Divisional District Hospital, Varanasi in the CT Scan report vitran haemorrhage M 1 xm fracture near right orbit was found and he was referred to AIIMS, New Delhi for better management.

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The learned counsel for the appellants has particularly attacked upon the charge sheet submitted in this matter in respect of the offence under Sections 323, 504, 506, 325, 326 IPC and 3(1) (dha) and 3(2)(Va) of the SC/ST Act. As per the prosecution case and the statement of witnesses a serious injury in his eye has been received by the injured and he was referred to AIIMS, New Delhi. Dr. Om Prakash in the hospital at Kabir Chaura, Varanasi specifically mentioned in his statement given to the I.O. that he has found fracture in the right eye of the injured and the medical report also reveals that the doctor while examining the injured found perception of light negative and also a cut was found in the cornea of right eye and eye injury was really grievous, which was sustained by belt, though a belt normally is not taken as a dangerous weapon but undoubtedly it is dangerous mean if hurt is caused to the sensitive part of the body like eye.

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So far as the application of Sections 3(1)(dha) and 3(2)(Va) of the SC/ST Act in the present matter is concerned, the F.I.R. of this case reveals that the offence took place at a public place within public view. The F.I.R. further reveals that the accused persons hurled caste related abuses to the injured persons and during investigation the Investigating Officer has collected the evidence to the effect that the informant side belongs to SC/ST community whereas the the accused persons are not the members of SC/ST community. Hence, offence under the said Sections of SC/ST Act

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is also made out against the appellants.

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Further, the parameters for framing of charge and discharge are well settled by a catena of judicial precedent. The Hon'ble Supreme Court in the case of P. Vijayan vs. State of Kerala, (2010) 2 SCC 398 held that the Judge is not a mere post office to frame charge but the Judge should exercise his judicial mind and discretion to determine whether a case for trial has been made out by the prosecution. It was further clarified that the Judge should be satisfied that the evidence produced by the prosecution before the Court discloses suspicion that the accused has committed the crime.

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In the case of Dilawar Balu Kurane vs. The State of Maharashtra, (2002) 2 SCC 135 , the Hon'ble Apex Court observed that in exercising powers under Section 227 of the Criminal Procedure Code, 1973, the settled position of law is that the Judge while considering the question of framing the charge under the said section has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out and whether the materials placed before the Court discloses grave suspicion against the accused which has not been properly explained to the Court, then in such a case the Court will be fully justified in framing the charge and proceed with the trial. On the other hand, if the Judge is satisfied that the evidence produced before the Court gives rise to some suspicion but not grave suspicion then the Judge will be fully justified in discharging the accused.

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Moreover, at the stage of framing charges a meticulous and indepth examination of the evidence is not required. The court is only concerned with determining if there is a prima facie case,

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meaning a sufficient ground to proceed with the trial. A detailed assessment of the evidence's credibility or a conclusive finding of guilt is not necessary at this point.

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In view of the above, from a perusal of the material available on record and keeping in view the facts of the case, in my view, at this stage it cannot be said that offences levelled against the appellants are not made out prima facie and the record shows that a cognizable offence is clearly made out against the appellants. Sufficient evidence has been collected against the appellants during the course of investigation. The Court concerned did not err in framing the charges against the appellants under Sections 323/34, 325/34, 326/34, 504, 506 IPC and 3(1)(dha) & 3(2)(Va) of the SC/ST Act. There is no force in the submissions made by the learned counsel for the appellants. The impugned order does not suffer from illegality, infirmity, perversity or lack of judicial mind. The prayer made in the appeal is refused. The criminal appeal being devoid of merits is liable to be dismissed and the same is accordingly dismissed .

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Order Date :- 3.7.2025

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safi

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Digitally signed by :- MAHBOOB SAFI High Court of Judicature at Allahabad

Zabir Mohammad and Another v. State of U.P. and Another

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