Allahabad High Court
Smt. Sita Devi vs State Of U.P. And Another on 1 March, 2024
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:38443 Court No. - 83 Case :- CRIMINAL REVISION No. - 3830 of 2023 Revisionist :- Smt. Sita Devi Opposite Party :- State Of U.P. And Another Counsel for Revisionist :- Akhtar Ali,Roma Verma Counsel for Opposite Party :- G.A.,Pankaj Bharti Hon'ble Rajeev Misra,J.
1. Heard Prabhakar Dubey, Advocate, holding brief of Mr. Akhtar Ali, the learned counsel for revisionist, the learned A.G.A. for State and Mr. Pankaj Bharti, the learned counsel representing opposite party-2.
2. This criminal revision has been filed challenging the judgment and order dated 15.04.2023 passed by Additional Sessions Judge, Court No.08, Saharanpur in Sessions Trial No. 1042 of 2021 arising out of Case Crime No. 302 of 2020, under Sections 147, 323, 304, 504 I.P.C. (State Vs. Israr) Police Station Gagalhedi, District Saharanpur, whereby charges have been framed against opposite party-2 under Sections 147, 323, 504 I.P.C. only.
3. Learned counsel for revisionist submits that initially court below had passed the framing of charge order dated 09.09.2022. Copy of which is on record at page 64 of the paper book. By means of above order charges were framed against an accused under Sections 147,304, 323, 504 I.P.C. However, against the order dated 09.09.2022 opposite party-2 filed Application under Section 482 No. 42840 of 2022 (Israr Vs. State of U.P. and Another) which came to be disposed of finally vide order dated. 06.02.2023. The same is reproduced hereinunder:-
"1. Heard learned counsel for the applicant and learned A.G.A. for the State.
2. Challenge has been raised to the order dated 09.09.2022 passed by learned Additional Sessions Judge, Court No. 08, Saharanpur, rejecting the refusing for discharge of applicant in sessions Trial No. 1042 of 2021 (State Vs. Israr) under Sections - 147, 304, 323, 504 I.P.C., Police Station - Gagalheri, District - Saharanpur, arising out of case crime No. 302 of 2020.
3. Submission of learned counsel for the applicant is, there is absolutely no evidence or material on the case diary as may ever make out charge of offence under Section 304 IPC. More than allegation of slapping the deceased, there is no other allegation against the applicant. Relying on the statement of the doctor who conducted autopsy, it has been submitted, wholly unreliable and imaginary statement was rendered by the doctor. The other accused are stated to have been charged for offence under Section 323 IPC. Last, it has been submitted, there is no external injury noted in the post-mortem report. The applicant had no role to play in the occurrence. Therefore, he ought to be discharged at this preliminary stage itself.
4. While such submission has been advanced by learned counsel for the applicant, at present, there does exist prima facie material as to the occurrence in the shape of statements of the eye-witnesses as found recorded in the case diary. What exact event took place and what exact injuries may have been suffered, may remain to be considered by the learned court below at the stage of framing of charge. However, since the occurrence cannot be disbelieved completely, the discharge sought was not earned at this stage.
5. The apprehensions expressed by learned counsel for the applicant that the learned court below would necessarily frame a charge of offence under Section 304 IPC, against the applicant is misconceived. The learned court below has yet not framed the charge under Section 304 IPC. The formal recitation of offence description (as alleged in the charge-sheet) at the end of the order refusing discharge, cannot be read as an opinion of the learned court below to frame charge under Section 304 IPC.
6. In any case, the application is disposed of with the direction, the learned court below will act in accordance with law and consider the material and circumstances existing on the case diary while framing of charge against the applicant for the exact offence for which prima facie satisfaction may be made out.
7. Accordingly, the present application is disposed of."
4. Subsequent to above order dated 06.02.2023 court below has passed the order dated 09.09.2022 i.e. order impugned in the present criminal revision, whereby, the court below has concluded that in facts and circumstances of the case, charges are liable to be framed against opposite party-2 only under Sections 147, 323, 504 I.P.C..
5. With reference to above, the learned counsel for revisionist contends that previously the court below had taken a view that on the basis of the material available on record charges are liable to be framed against an accused i.e. opposite party-2 under Section 304 I.P.C. also. However, subsequent to the order dated 06.02.2023 passed by this court, court below has reviewed its own order which exercise is not permissible as there is no doubt of review under the Code of Criminal Procedure. It is then contended that autopsy surgeon who conducted the autopsy on the body of the deceased in his statement under Section 161 Cr.P.C. is categorically opined that the cause of death could have occurred on account of slap inflicted by the named accused upon the deceased. On the above premise, he contends that since there was material evidence to try the charge sheeted accused i.e. opposite party-2 even for an offence under Section 304 I.P.C. Therefore, court below has erred in law not taking the decision to frame charge under Section 304 I.P.C. against opposite party-2. Consequently, the order impugned cannot be sustained and therefore liable to be set aside by this court.
6. Per contra, the learned A.G.A. for State and Mr. Pankaj Bharti, the learned counsel representing party-2 do not oppose the present criminal revision. They submit that as per the post mortem report of the deceased, cause of death of the deceased could not be ascertained. Similarly, as per the viscera report the cause of death of the deceased could not be concluded. They, therefore, submit that in view of aforementioned clinching piece of evidence it cannot be said that the act of charge sheeted accused opposite party-2 shall be fall in the category of incapable homicidal nor amounting to murder. Reference was made to the provisions contained in Section 304 I.P.C. read with Section 300 I.P.C.
7. With reference to above, it is urged that since none of the exceptions provided under Section 300 I.P.C. are satisfied in the present case, therefore, the case is neither fall within the parameters of Section 304 (1) and Section 304 (2) Cr.P.C. In view of above, no illegality has been committed by court below in passing the order impugned, consequently, the present criminal revision is liable to be dismissed.
8. When confronted with above, the learned counsel for revisionist could not overcome the same.
9. Having heard, the learned counsel for revisionist, the learned A.G.A. for State, Mr. Pankaj Bharti, the learned counsel representing opposite party-2 and upon perusal of record and this court finds that objections raised by the learned A.G.A. for State and the learned counsel representing opposite party-2 in opposition to the present criminal revision could not be dislodged by the learned counsel for revisionist, therefore, this Court does not find that no good ground exists to entertain the present criminal revision.
10. In view of above, present criminal revision fails and is liable to be dismissed.
11. It is, accordingly, dismissed.
12. However, it is observed that in case new material is discovered during the course of trial, it shall be opened to the revisionist to file an application under Section 260 seeking alteration of charge.
Order Date :- 1.3.2024 Imtiyaz