ORDER
Heard on I.A.No.1351/2025, which is an application under Section 5 of the Limitation Act for condonation of delay. Delay of 648 days in filing the appeal is duly explained in the application, which is well supported by an affidavit, therefore, application is allowed for the reasons stated therein and delay in filing the appeal is hereby condoned. Order dated 11.01.2023 passed in S.C.No.157/2022 by Special Judge SC/ST (Prevention of Atrocities) Act is under challenge in this Criminal Appeal filed under Section 14-A of SC/ST (Prevention of Atrocities) Act, 1989 (hereinafter referred to as 'the Act,1989') whereby charges under Sections 342, 386, 294, 326(a)/34, 307/34, 506(2) of the IPC, section 3(2) (V), 3(1)(r), 3(1)(s), 3(2)(Va), 3(1)(e) of the SC & ST (Prevention of Atrocities) Act, 1989 have been framed.
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2. As per prosecution case, on 09.07.2022, at about 12 P.M. complainant Pankaj Gadaria who was residing as tenant in the house of appellant Nazim at Naita Mundla, Indore came to the police station and reported that appellant Nazim Khan has asked him to accompany for going to purchase goat for sacrifice. Appellant Nazim along with Aadil Khan took him on his Activa to the house of one unknown person were two persons were already present. On the pretext that goat has been kept on the roof, they took him in the upper floor where the other two persons were already present caught hold of him and took him inside the room and bolted from inside. After that all of them threw him down on the ground and snatched his mobile phone, ATM of Paytm payment Bank and also got the PIN of that Paytm by torturing him. Nazim stated that by threatening his son he has taken Rs.50,000/- and purchased the laptop from the aforesaid amount. When he refused of taking money from Zishan, all of them abused him in filthy language and beaten him by plastic pipe and kicks and fists. They also inserted petrol in his anus and after striping him of prepared video. All of them insulted and beaten him calling him by caste name. After two hours, they took him back to the room. He sustained injuries on his buttocks, head, right hand wrist and both arms and ears. On this FIR No.478/2022 was registered.
3. Learned counsel for the appellants submits that Section 326A and 326B of IPC are attracted only when acid is used for causing grievous hurt. Since no acid has been used, charges under Sections 326A and 325B of IPC are not made out. He further submits that simple injuries have been found on
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the body of the complainant, therefore, no question arises for framing charge under Section 307 of IPC, as there was no intent on the part of the appellants to cause murder of the complainant. He has further assailed the framing of charges under Sections 3(2)(V), 3(1)(r), 3(1)(s), 3(2)(Va), 3(1)(e) of the SC & ST (Prevention of Atrocities) Act, 1989.
3(i) Learned counsel for the appellants further submits that under similar circumstances, the appeal of the appellant Nazim is partly allowed and the charges under Section 326A, 326B and 307 of IPC, Section 3(2)(V) of the Act, 1989 are set aside and appellants are discharged from the aforesaid charges vide order dated 20.12.2024 passed in CRA No.12830/2024 and on the ground of parity, the present appellants are also entitled for the same benefit. On these miscellaneous contentions learned counsel prays for setting aside the charges under Section 307, 326A, 326B of IPC and Sections 3(2)(V), 3(1)(r), 3(1)(s), 3(2)(Va), 3(1)(e) of the SC & ST (Prevention of Atrocities) Act, 1989.
4. Learned counsel for the respondent/State supporting the charges framed vehemently opposed the prayer contending that there is ample evidence on record for framing charges under the aforesaid provisions.
5. Heard learned counsel for the parties and perused the record.
6. Copy of charge sheet has been filed perusal whereof in itself reveals that corrosive substance like acid has not been used for causing hurt to the complainant, therefore, Section 326A, 326B of IPC is made out. Sections 326A and 326B of IPC reads as under:-
"326A.- Voluntarily causing grievous hurt by use of acid, etc.-Whoever causes permanent or partial damage or deformity to, or bums or maims or disfigures or disables, any part or parts of the
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body of a person or causes grievous hurt by throwing acid1 on or by administering acid to that person, or by using any other means with the intention of causing or with the knowledge that he is likely to cause such injury or hurt, shall be punished with imprisonment of either description for a term which shall not be less than ten years but which may extend to imprisonment for life, and with fine:
Provided that such fine shall be just and reasonable to meet the medical expenses of the treatment of the victim:
Provided further that any fine imposed under this section shall be paid to the victim.
326B. Voluntarily throwing or attempting to throw acid.- Whoever throws or attempts to throw acid1 on any person or attempts to administer acid to any person, or attempts to use any other means, with the intention of causing permanent or partial damage or deformity or bums or maiming or disfigurement or disability or grievous hurt to that person, shall be punished with imprisonment of either description for a term which shall not be less than five years but which may extend to seven years, and shall also be liable to fine.
Explanation 1.- For the purposes of section 326A and this section,
"acid" includes any substance which has acidic or corrosive character or burning nature, that is capable of causing bodily injury leading to scars or disfigurement or temporary or permanent disability.
Explanation 2.-For the purposes of section 326A and this section, permanent or partial damage or deformity shall not be required to be irreversible."
7. Similarly from the perusal of MLC report it has nowhere been found that any serious injuries have been inflicted on the person of the complainant by any lethal weapon. As per allegations contained in the FIR, only plastic pipe has been used for assaulting the complainant. He has also been assaulted by kicks and fists. In the aforesaid circumstances, charges under Section 307 of IPC is also not attracted.
8. In such a situation, when no offence punishable for life is attracted from the material collected during investigation, charge under Section 3(2)
(V) of the Act, 1989 cannot be framed. Looking to the nature of incident, other charges framed under Sections 3(1)(r), 3(1)(s), 3(2)(Va), 3(1)(e) of the SC & ST (Prevention of Atrocities) Act, 1989 are fully applicable.
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(BINOD KUMAR DWIVEDI)
JUDGE
9. Resultantly, this appeal is partly allowed and the charges under Section 326A, 326B and 307 of IPC, Section 3(2)(V) of the SC & ST (Prevention of Atrocities) Act, 1989 are set aside and appellants are discharged from the aforesaid charges. Trial will continue for all other charges.
This appeal is allowed to the extent indicated hereinabove. soumya
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