BHAVESH BHANUBHAI SITAPARA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This appeal is preferred under Section 14-A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short herein after referred to as 'Atrocities Act') challenging the order passed by the learned Additional Sessions Judge (Special Court for Atrocities), Dhoraji whereby, the application for an order of discharge so far as offence under Section 395 of Indian Penal Code (IPC) as also offences under the provisions of Atrocities Act are concerned, came to be rejected.

(2.) Mr. Pravin Gondaliya, learned advocate for the appellants submitted that there are no ingredients of offences satisfied, from the papers of charge-sheet, to hold the appellants guilty of an offence under Section 395 of IPC. He has further contended that amount in cash from the victim was not robbed of with the intention to commit an offence of dacoity. He has further pointed out that since looking to the allegations leveled in the FIR, other offences are committed like Section 427, 325 and 323 of IPC. The injuries caused to him cannot be relatable to an injury caused while committing offence of dacoity. He has further submitted that the victim was not attacked with an intention to commit dacoity and therefore, no ingredients of dacoity are satisfied and therefore, the appellants are required to be discharged so far as offence under Section 395 of IPC is concerned. Over and above that, he further contended that since many of the accused are of either Scheduled Castes or Scheduled Tribes, no provision of Atrocities Act can be invoked against them. He has further contended that the offence under the Atrocities Act is not committed with an intention to humiliate the victim about his caste and therefore, no offence under Section 3(2)(v-a) of the Atrocities Act can be said to have been committed.

(3.) Looking at the order passed by the learned Additional Sessions Judge it is clear that before the trial Court while arguing discharge application, the capability of victim to carry Rs. 65,000/- with him was questioned. It was argued that from where he had brought Rs. 65,000/- is not stated in the statement. If it is withdrawn from the Bank, no contemporaneous record to support the said submission is produced by him. However, Mr. Gondaliya, learned advocate has not canvased those arguments but his attempt is to argue that injuries caused to the victim are not with an intention to commit dacoity. However, fact remains that not only the victim is injured, as also amount of Rs. 65,000/- is robbed of from him. Since from the FIR itself, it is clear that victim is robbed of Rs. 65,000/-, prima-facie, case exists to invoke the provisions of Section 395 of IPC and the appellants cannot be discharged even from that provision of law. At the same time, Mr. Gondaliya, learned advocate for the appellants relied on a decision in the case of Dharmendrabhai Nandubhai Patel v. State of Gujarat reported in 2011 (3) GLH 739 to contend that, when at the time of assault any amount is taken away by the accused, it cannot be said that they have committed an offence under Section 395 of IPC even if they have caused any injury to the victim. However, looking at the said judgment after appreciation of the evidence led before the Court and looking at the nature of dispute in between the accused and the prosecution witnesses, the Court has concluded that the common object of the unlawful assembly was not to commit the offence of dacoity but to thrash the first informant for getting married discreetly without seeking any permission from the family members. However, that stage has not yet reached in the present case and evidence is yet to be led. If it is made out that no offence is committed, the Court is at liberty to pronounce that also. For invoking provision of Section 3(2)(v) and 3(2)(va) of Atrocities Act intention of the accused is not relevant but knowledge of the accused that victim is of that caste and then accused committed any offence as mentioned in the Schedule, is relevant. However, as there exists, prima-facie case and there exist sufficient grounds for proceeding against the accused, they cannot be discharged. Hence, this appeal is dismissed.