Allahabad High Court
Anjali Saroj vs State Of U.P. And 4 Others on 26 September, 2022
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 80 Case :- CRIMINAL APPEAL No. - 4296 of 2022 Appellant :- Anjali Saroj Respondent :- State Of U.P. And 4 Others Counsel for Appellant :- Syed Mohammad Abbas Abdy Counsel for Respondent :- G.A.,Jai Prakash Singh,Pulak Ganguly,Sanjay Kumar Pal Hon'ble Om Prakash Tripathi,J.
Heard learned counsel for the appellant, learned counsel for opposite party nos.2 to 5 and learned AGA for the State.
This criminal appeal has been preferred against the order dated 06.05.2022 passed by learned Special Judge (SC/ST) (P.A.) Act, Azamgarh passed in ST No.122 of 2021, arising out of Case Crime No.149 of 2021, under Sections 147, 148, 149, 323, 325, 504, 506, 308, 304 IPC and Section 3(1)(da), 3(1(dha) and 3(2)5 SC/ST Act, P.S. Sidhari, District Azamgarh, by which charge under Section 304 IPC has been framed in place of Section 302 IPC.
The main ground for the appeal is that impugned order is illegal arbitrary and against the evidence on record. Learned Trial Court has completely failed to assess the evidence on record and order passed without applying the judicial mind. Accused persons assaulted Rajesh Saroj with intention to kill him. The diagnosis of the doctor is that there is a traumatic brain injury on Rajesh Saroj, as per x-ray report. Incident took place on 29.06.2021, FIR was lodged on 30.06.2021 during pendency of investigation Rajesh Saroj expired on 07.07.2021. Learned Trial Court in a mechanical and arbitrary manner framed charge under Sections 147, 148, 149, 323, 325, 504, 506, 308, 304 IPC and Section 3(1)(da)(dha), 3(2)V SC/ST Act. Impugned order passed without giving any reason for dropping the charge under Section 302 IPC. FIR lodged by victim Rajesh Saroj become dying declaration after his death under Section 32 Evidence Act. Deceased was young person of 35 years having wife and two minor children aged 13 years and 9 years. It was not a case of sudden provocation. There is a prima facie case to proceed to frame the charge under Section 302 IPC. Accused persons have criminal antecedent. Court below has not assigned any reason for diluting Section 302 IPC to 304 IPC. Charge alteration application is also pending u/s 216 Cr.P.C.
Learned counsel for opposite party nos.2 to 5 rebutted the submissions made by the learned counsel for the appellant and submitted that initially the case was lodged under Sections 147, 148, 149, 323, 325, 504, 506 IPC and Section 3(1)(da) (dha) and Section 3(2)(5) SC/ST Act and during treatment informant died on 07.07.2021. After investigation, charge sheet under Sections 147, 148, 149, 323, 325, 504, 506, 308, 302 IPC and Section 3(1)(da) (dha) and Section 3(2)(5) SC/ST Act, has been submitted. Discharge application of Ambuj Rai @ Dolly Rai and Vivek Rai have been rejected by the Trial Judge on 18.04.2022. Charge u/s 304 IPC is rightly famed as death was 7 days after the incident. There is no dying declaration by the deceased.
On the point of discharge of the accused, following citations are necessary to be mentioned here.
Sanjay Kumar Rai vs. State of UP and Another AIR 2021 SC 2351 Union of India vs. Prafulla Kumar Samal (1979) 3 SCC 4 Dilawar Balu Kurane vs. State of Maharashtra (2002) 2 SCC 135 Sajjan Kumar v. Central Bureau Of Investigation (2010) 9 SCC 368 Tarun Jit Tejpal vs The State Of Goa (2015) 14 SCC 481 K. Subba Rao vs The State Of Telangana 2018 (14) SCC 452 Kahkashan Kausar @ Sonam vs The State Of Bihar Cr.Appeal 195 of 2022 dated 08.02.2022 SC.
Hon'ble Apex Court had laid down guidelines with regard to charge:
1.) Weigh evidence for limited purpose of finding out whether or not prima facie case against accused has been made out;
2.) Fact discloses grave suspicion against accused, not explained;
3.) Court cannot act merely as Post Office or a mouthpiece of prosecution but has to consider broad probabilities of the case;
4.) At this stage, there cannot be a roving inquiry in the pros and cons of the matter and weigh the evidence as if he was conducting the trial;
5.) Apply judicial mind satisfy that commission of offence was possible;
6.) It cannot be expected at initial stage to accept prosecution case as gospel truth;
7.) In case of suspicion, charge can be famed and in case of grave suspicion, accused should be discharged.
From the perusal of order dated 18.04.2022 passed by the Special Judge SC/ST Act, Azamgarh, it has been mentioned that charge sheet has been filed against the accused under Sections 147, 148, 149, 323, 325, 504, 506, 308, 302 IPC and Section 3(1)(da) (dha) and Section 3(2)(5) SC/ST Act. At the stage of charge, case against the accused should not be established beyond reasonable doubt, only on the basis of prima facie case, charge can be framed. Appreciation of evidence is not permissible. So the discharge application 40kha/1 and 40kha/2 has been rejected.
Before framing charge, Trial Court has passed the order dated 06.05.2022 and came to the conclusion that charge under Section 304 IPC be framed against the accused in place of Section 302 IPC, and thereafter, charge under Section 304/149 IPC has been framed for culpable homicide not amounting to murder. Both orders dated 18.04.2022 and 06.05.2022 are self contradictory on the point of Section 302 or 304 IPC. Trial Court has not given any reason that how he came to conclusion that charge under Section 304 IPC be framed against the accused in place of Section 302 IPC. Reason has not been assigned in the impugned order of framing charge dated 06.05.2022.
On the basis of above discussion, it is a fit case in which interference by this appellate court is required. This Court is of the view that impugned order has been passed without assigning any reason, trial court has directly come to the conclusion that charge under Section 304 IPC is made out, is illegal. Thus, impugned order dated 06.05.2022 and consequently charge no.8 is set aside and this criminal appeal is disposed of with the direction that Trial Court shall decide afresh whether charge under Sections 304 or 302 IPC is made out against the accused, within a period of three months from the date of production of certified copy of this order, in accordance with law by reasoned order.
Order Date :- 26.9.2022 Priya