Allahabad High Court
Yashpal Singh @ Yashpal Rana vs State Of U.P. And Another on 23 September, 2014
Author: Ramesh Sinha
Bench: Ramesh Sinha
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 51 Case :- APPLICATION U/S 482 No. - 39431 of 2014 Applicant :- Yashpal Singh @ Yashpal Rana Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Manish Tiwari,Ashwini Kuamr Awasthi Counsel for Opposite Party :- Govt. Advocate Hon'ble Ramesh Sinha,J.
1 The present application under Section 482 Cr.P.C. has been filed by the applicant for quashing the order dated 29.08.2014 passed by Additional Sessions Judge (E.C.) Act, Meerut in Session Trial No. 1057 of 2008 (State Vs. Sachin Malik and another), under Section 302/34 IPC, P.S.- Medical, District Meerut.
2 The prosecution story in brief as set out in the FIR is that on 06.07.2004 at about 10.30 a.m. the complainant was informed by the Principal of Medical College, Meerut that his son Siddharth Chowdhary has died. On receiving the said information, the complainant rushed to the hospital of Medical College, Meerut and upon entering in the room of Sachin Malik, the informant did not found there the dead body of his son and further inquired about it, he was told that the dead body of his son was sent for post mortem and is lying in mortuary. The informant was further informed that a complaint has already been lodged regarding the incident at the concerned police station but the same was not found to be true. The informant alleged that he was not shown the dead body of his son at the first instance and after much persistence, he was shown the dead body and after looking at the same, there were some visible injury on his body. The doctor who conducted the post mortem has not mentioned in the post mortem report about the said injuries. The informant has alleged in the FIR that there was some foul play and his son was murdered. The FIR of the incident has been lodged against four persons namely Sachin Malik, Amandeep Singh, Dr. Usha Sharma, Principal of Medical College, Meerut including the applicant.
3. The FIR of the incident was lodged on 09.08.2004 by opposite party No. 2, Dr. Surendra Singh Girwal at the Police Station-Medical, District Meerut. On 06.07.2004, the post mortem of the deceased was conducted by Dr. Harpal Singh. According to the post mortem report of the deceased, the lungs of the deceased was congested and no ante mortem injury was found on the body of the deceased. Moreover, the cause of death could not be ascertained hence viscera was preserved.
4. The investigation was started and the statement of one Gyan Bahadur was recorded by the investigation officer on 10.08.2004, under Section 161 Cr.P.C. who was employee of the Medical College, Meerut and posted in the Mess of the College. He had stated that the deceased was drunkard and he would regularly turned up in the hostel in the drunken state and on the night of 05.07.2004 also he was drunken. The investigating officer after lapse of one month has recorded the statement of the informant on 29.04.2004. Dr. Surendra Singh Girwal, the father of the deceased who supported the version of the FIR and stated that the applicants and other co-accused persons had committed the murder of the deceased. The investigating officer also recorded the statement of Ravi Kumar, Vivek Gupta and Jai Prakash Gupta under Section 161 Cr.P.C. and all of them have stated that the deceased Siddharth Chaudhary was drunkard and drug addicted and they further stated that on the date of incident some hot talk took place on telephone between the deceased and his parents and deceased earlier met with an accident in which he has received injuries on 27.04.2004. The statement of Dr. Harpal Singh, who had conducted the post mortem, was recorded under Section 161 Cr.P.C. by investigating officer who had affirmed the finding recorded in the post mortem report and further specifically denied there were any injuries on the body of the deceased. The investigating officer further on 10.10.2004 recorded the statement of one Siddharth, who has also supported the statement of Ravi Kumar, Vivek Gupta and Jai Prakash Yadav. The version which has been stated by them in the statement under Section 161 Cr.P.C. the informant realising that the manner in which the local police was investigated the incident to be biased and not fair. He moved an application before U.P. Human Right Commission for seeking transfer of the investigation on which the Human Right Commission on 17.12.2004 has taken into account that the local police has not carried out the investigation in an fair manner. Hence, transferred the investigation of the case from local police to the C.B.C.I.D. The viscera report of deceased which was sent by the local police to the Forensic Science Laboratory, Agra and the viscera report dated 06.10.2004 shows that there was presence of Ethyl Alcohol in the body of the deceased. After the investigation was transferred to CBCID, the investigating officer again recorded the statement of the informant on 25.02.2005 under Section 161 Cr.P.C. who reiterated the contents of the FIR and the first statement given to the local police. Similarly, the investigation officer recorded the second statement of Gyan Bahadur on 03.03.2005 and also Shaligram and Rishu Sangal Chaudhory Shekhar, who have stated that the deceased was a drunkard. Similarly, the Investigating Officer of the C.B.C.I.D recorded the statement of Sri Ajit Kumar and Siddharth, Gyan Bahadur on 04.03.2005. The I.O. recorded the statement of one Firsat Hussain who also stated that the deceased was drunkard and the deceased was never seen accompanying the co-accused Amandeep Singh. The C.B.C.I.D. on 15.03.2005 again recorded the statement of Dr. Harpal Singh who had conducted post mortem of the deceased under Section 161 Cr.P.C. The investigating officer has also recorded the statement of one Rajiv Kaushik who had conducted the inquest proceedings and also stated that there was no visible injury on the body of the deceased. On 01.04.2005 the investigating officer further recorded the statement of Dr. Ajit Singh who was uncle of the deceased and Saiddi Azad who was driver of the informant and both of them suggested that the deceased was regular drunkard and also in habits of taking drugs etc.
5. On 21.04.2005, the statement of Dr. Vijay Agrawal, Parag Agarwal, Ravi Kumar, Mrinal Rathi and Onkar Singh were recorded who had stated that the deceased was annoyed with his parents over the telephone on the night of the incident and Prag Agarwal, who was one of the witness of inquest has mentioned that there was no visible injury on the body of the deceased and the said fact was also stated by the witness Ravi Mishra and Om Prakash on 12.06.2005. The statement of second doctor namely Dr. M.K. Gulathi was recorded by investigating officer who supported the post mortem prepared by Dr. Harpal Singh. The investigating officer of C.B.C.I.D after the said investigation submitted the final report on 15.02.2006.
6. The informant/ opposite party no.2 being aggrieved by the said final report submitted by C.B.C.I.D filed a protest petition in the court below and the learned Magistrate vide order dated 06.12.2006 rejected the final report and summoned the applicant along with the co-accused and to face the trial under Section 302 IPC. The accused persons were arrested including the applicant and they were granted bail by the competent court.
7. The informant filed a transfer application before this Court for seeking transfer of the case from Meerut to any other competent court jurisdiction on the ground that the first informant was a senior citizen and not possible to regular attend at the proceeding of trial at Meerut and further alleged that he and his wife were threatened by the accused persons. Initially an interim order was passed by the said court below and finally said transfer application was dismissed by this Court on 10.03.2014 and the interim order was also vacated by the Court.
8. The applicant after disposal of the transfer application, filed discharge application before the trial court for discharging him from offence in question as no offence is made out against him which was rejected by the trial court on 09.07.2014 observing that there was prima facie material available against the applicant and co-accused persons for framing charge and for prosecution in the case, ultimately on 29.08.2014 the trial court framed charges against the applicant and other co-accused persons.
9. Aggrieved by the order framing charge the applicants have preferred the present application under Section 482 Cr.P.C. for quashing of the same and interim prayer for staying the proceeding of the trial court.
10. Heard Sri Manish Tiwari, learned counsel for the applicant, Sri Akhilesh Singh, learned Government Advocate for the State and perused the record.
11. Learned counsel for the applicant has argued that from the entire material collected during the course of investigation by the local police as well as by the C.B.C.I.D which submitted a final report in the case no offence is made out against the applicant which may warrant his trial in the case. He submits that the applicant is a MBBS doctor and is running nursing home and has wide reputation in the society and he has been falsely implicated in the present case only on account of suspicion. He further argued that the deceased was drunkard and was drug addicted and he was also not having good relationship with his parents and has also come in the investigation by the local police that on the day of investigation there was hot talk between the deceased and his parent on the telephone. The post mortem report of the deceased shows that there was no visible injury found on his persons and cause of death could not be ascertained, hence viscera was preserved. He further submits that as per the report of the viscera ethyl alcohol was found in the body of the deceased and on account of which he died. He submits that there is no direct evidence against the applicant to connect him with the present crime. Moreover, only on the basis of suspicion he has been falsely implicated in the present case. The trial court has illegally rejected the discharge application and framed charges against the applicant by passing the impugned order dated 29.08.2014 for his prosecution along with other co-accused person should be set aside by this Court.
12. Per contra, Sri Akhilesh Singh, learned Government Advocate has vehemently opposed the prayer for quashing the order dated 29.08.2014 and submitted that prima facie there appears to be sufficient evidence against the applicant and other co-accused persons for prosecution by the trial court and the trial court has rightly rejected the discharge application the applicant and other co-accused persons and has rightly ordered for framing of charges against them on the basis of the evidence collected during the course of investigation. He submits that as per the statement of the first informant recorded under Section 161 Cr.P.C. by the local police as well as by the C.B.C.I.D. it is apparent that the deceased died unnatural death and there was motive for committing the murder of the deceased by the applicant and other co-accused persons. He submits that the incident pertains to the year 2004 and 9 years have lapsed and trial has been lingered though it was not on account of the applicant and co-accused persons but on account of the fact of transfer application filed by the informant of the case who being the old father of the deceased could not travel to Meerut for attend the proceedings of the trial leaving behind his wife and further apprehended some danger to his life at the hand of the accused persons. He submits that it would be too early to hold at this stage that the applicants and other co-accused persons are not involved in the present case as the evidence is still to be led by the prosecution before the trial court. Hence, the present application U/S 482 Cr.P.C. filed by the applicant be dismissed and trial court be allowed to proceed in accordance with law.
13. Considered the submissions advanced by the learned counsel for the parties and perused the record.
14. It is admitted fact that the dead body of the deceased was found in the room of co-accused Sachin Malik and he died unnatural death. The manner in which the incident has taken place it shows that some foul play on the part of the co-accused persons including the applicant as when the deceased died in the room his dead body was taken to the mortuary without informing his parents by Warden of the Medical College. Moreover no other inmates of nearby rooms were called or informed who were present in the hostel of the Medical College nor were interrogated by the local police or by the C.B.C.I.D. to find out the manner in which the incident taken place. The statements of the witnesses recorded under Section 161 Cr.P.C. by the local police as well as C.B.C.I.D. shows that the same has been recorded in cyclo style manner in order to suppress the true facts of the incident though the informant from the very beginning has alleged that his son was murdered and the police as well as the authorities of the hospital were trying to give a colour of suicide to the incident. It appears from the evidence on record that the deceased was being harassed by the applicant and other accused persons on one count or the other because of his strained relationship with his family member and it appears that deceased had taken some money from the accused persons including the applicant which were being demanded by the them and when he refused to pay the same, he was done to death in pre- planed manner showing his death to be a case of suicide. The trial court has rejected the discharge application of the applicant including the other co-accused persons by passing an order on 19.07.2014 and the said order has not even been challenged by the applicant in the present application under Section 482 Cr.P.C or before. Hence, the same has attained finality and only an order framing of charge has been challenged by the applicant in the present 482 Cr.P.C. application which does not suffer from any illegality or infirmity or can be said to be abuse of process of the Court.
15. The Apex Court in the Case of Sheoraj Singh Ahlawat and others Vs. State of U.P. and another reported in 2013 (11) SCC 476 has held that " While framing charges, court is required to evaluate materials and documents on record to decide whether facts emerging therefrom taken at their face value would disclose existence of ingredients constituting the alleged offence. At this Stage, the court is not required to go deep into the probative value of materials on record. It needs to evaluate whether there is a ground for presuming that accused had committed offence. But it should not evaluate sufficiency of evidence to convict accused. Even if there is a grave suspicion against the accused and it is not properly explained or court feels that accused might have committed offence, then framing of charges against the accused is justified. It is only for conviction of accused that materials must indicate that accused had committed offence but for framing of charges if materials indicate that accused might have committed offence, then framing of charge is proper. Materials brought on by prosecution must be believed to be true and their probative value cannot be decided at this stage. The accused entitled to urge his contentions only on materials submitted by prosecution. He is not entitled to produce any material at this stage and the court is not required to consider any such material, if submitted. Whether the prima facie case made out depends upon facts and circumstances of each case. If two views are possible and materials indicate mere suspicion, not being grave suspicion, against accused then he may be discharged. The court has to consider broad probabilities of case, total effect of evidence and documents produced before it. The Court should not act as mouthpiece of prosecution and it is impermissible to have roving enquiry at the stage of framing of charge."
16. Hence, considering the law enumerated by the Apex Court in the aforesaid judgement and further taking into account that the deceased has died unnatural death and without a regular trial of the applicant and co-accused persons, it is not possible for any court to record a finding at this stage that they are not involved in the present incident, therefore, the present 482 Cr.P.C. application lacks merit and is accordingly dismissed.
17. The trial court is directed to expedite the trial and conclude the same preferably within the period of six months strictly in compliance of the provision of Section 309 Cr.P.C. from the date of production of the certified copy of this order before the trial court, if there is no legal impediment.
Order Date :- 23.9.2014 Ajay