The trial court erred in taking cognizance against the appellants due to insufficient evidence and contradictions in witness statements.

ORDER :

1. Instant criminal appeal has been filed by the appellants against the order dated 23.03.2022 passed by the learned Special Judge, SC/ST (Prevention of Atrocities) Act Cases, Bikaner by which the trial court accepted the protest petition and took cognizance against the appellants for offence under Sections 323, 341 IPC and Section 3(1)(s) of SC/ST (Prevention of Atrocities) Act.

2. Brief facts of the case are that the complainant Vijaypal@ Amlkit filed a complaint stating therein that on 26.08.2013 when he was going towards market, the appellants alongwith other unknown persons stopped him and started abusing him using caste oriented language. It was alleged that one of accused hit the complainant with a lathi and one of the accused even fired a gunshot. The complainant anyhow managed to escape.

3. On the basis of complaint, FIR No. 181/2013 was lodged at Police Station Chattargarh, District Bikaner and investigation commenced. After investigation, the police submitted a negative Police report. Feeling aggrieved, the complainant filed a protest petition. The learned trial court vide order dated 23.03.2022 accepted the protest petition of the complainant and took cognizance against the appellants for offences mentioned above.

4. Learned counsel for the appellants submits that there are material contradictions, omissions and improvements in the statement of witnesses which goes to show that no such incident took place as alleged by the complainant. The police after thorough investigation, came to the conclusion that the appellants were not even present at the alleged crime scene. It is argued that the incident as alleged by the complainant is dated 26.08.2013 whereas, the injury report relied upon by the trial court for taking cognizance is dated 03.10.2013. Moreover, in the said report, it is mentioned that there is swelling at the right thumb, which appears to be 4-5 days old. Thus, there is no evidence of any fracture/injury on record. Therefore, the order of the Court below taking cognizance against the appellants is bad in the eye of law and deserves to be set aside.

5. Per contra, learned Public Prosecutor and counsel for the respondent no. 2 submits that the complainant as well as witnesses have specifically stated that the accused appellant assaulted the complainant and hurled abuses, therefore, the trial court has rightly taken cognizance against the appellants.

6. I have heard rival contention of the parties and carefully gone through the record.

7. Admittedly, the police after thorough investigation had submitted negative FR against the present appellants. In the FR filed by the police, the police had referred to the statement of witnesses. Further a perusal of the injury report of complainant would go to show that the same was prepared on 03.10.2013 i.e. after about 40 days from the date of incident. Moreover, in the said report, it is submitted that there is swelling at the right thumb, which appears to be 4-5 days old. In the opinion of this Court, the trial court has fallen into an error in taking cognizance against the appellants.

8. Accordingly, this criminal appeal is allowed. The impugned order dated 23.03.2022 passed by the learned Special Judge, SC/ ST (Prevention of Atrocities) Act Cases, Bikaner taking cognizance against the appellants for offence under Sections 323, 341 IPC and Section 3(1)(s) of SC/ST (Prevention of Atrocities) Act is hereby quashed and set aside.

9. Stay application is also disposed of.