Allahabad High Court
Smt Kai Mum Nisha @ Smt. Kaimul Nisha And 8 ... vs State Of U.P. And Another on 17 October, 2022
Author: Saurabh Shyam Shamshery
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 84 Case :- APPLICATION U/S 482 No. - 17514 of 2022 Applicant :- Smt Kai Mum Nisha @ Smt. Kaimul Nisha And 8 Others Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Shahroze Khan Counsel for Opposite Party :- G.A.,Dharnidhar Pandey,Sudhir Kumar Mishra Hon'ble Saurabh Shyam Shamshery,J.
1. Heard Shri Shahroze Khan, learned counsel for the applicants, Shri Dharnidhar Pandey, learned counsel for opposite party no. 2 and Shri Paritosh Malviya, learned A.G.A. for the State.
2. There is challenge to the rejection of the discharge application filed by the applicants, who are facing trial in Sessions Trial No. 1081 of 2020 (State Vs. Shafi Mohammad and others) arising out of Case Crime No. 159 of 2020, under Sections 147, 302, 323, 325, 336, 504 I.P.C., Police Station Trilokpur, District Siddharth Nagar. The impugned order was passed on 26.04.2022 and on the same day charges were also framed.
3. Shri Dharnidhar Pandey, learned counsel for opposite party no. 2, on instructions, submits that presently trial is proceeding and as many as three prosecution witnesses have been examined.
4. Shri Shahroze Khan, learned counsel for the applicants submits that no charge can be framed under Section 302 IPC as the post-mortem report opined that the cause of death was "shock as a result of cardiac arrest myocardial infraction". Learned counsel submits that as no external injury was seen, therefore, it could not be a case for committing offence under Section 302 I.P.C. rather it would a case for committing offence under Section 323 I.P.C. or 325 I.P.C.
5. Learned A.G.A. as well as counsel for opposite party no. 2 have pointed out that both the chambers of lungs were filled with blood clots. Dr. Rajiv Kumar Ranjan, who conducted the post-mortem of the deceased, in his statement recorded during investigation has stated that heart attack was caused due to assault by the accused persons.
6. Learned counsel for the applicants placed reliance on a judgment passed by the Supreme Court in the case of State of Karnataka v. Shivalingaiah Alias Handigidda reported in 1988 Supp (1) SCC 533, wherein the charges were framed against the appellant therein under Section 302 I.P.C., however, the learned trial Court convicted him for voluntary causing simple injury, punishable under Section 323 I.P.C. In that circumstances, the Supreme Court modified the conviction from Section 323 to Section 325 Penal Code. The Supreme Court hold that the High Court has brought out the circumstances which shows that the respondent acted on a sudden impulse. The High Court was therefore right in its conclusion that the act complained of would not amount to culpable homicide amounting to murder or not amounting to murder punishable under Section 302 or Section 304 Part II. The testimony of Dr. T.C. Seetharam clearly shows that such act was danger to human life. It actually led to the cardiac arrest of the deceased as a result of which he died almost instantaneously.
7. Learned counsel for the applicants also relied on a judgment passed by Division Bench of Rajasthan High Court at Jodhpur in the case of Dhula Ram and Others Vs. State, through PP, D.B. Criminal Appeal No. 114 of 2019, wherein the Division Bench while considering the appeal after the conviction, followed the judgment passed by Supreme Court in the case of State of Karnataka v. Shivalingaiah Alias Handigidda (supra).
8. Per contra, learned A.G.A. has supported the impugned order and placed reliance on the nature of the status of the lungs as mentioned in the post-mortem report.
9. The Court is considering rejection of the application for discharge. A Three Judges' Bench of the Supreme Court in a recent judgment passed in the case of Ghulam Hassn Beigh vs. Mohammad Maqbool Magrey and others; 2022 SCC Online SC 913 has discussed the position of law on discharge and in paragraph 31, which would be relevant, has held as under:-
"The trial Court as well as High Court got persuaded by the fact that the cause of death of the deceased as assigned in the post mortem report being the "cardio respiratory failure", the same cannot be said to be having any nexus with the alleged assault that was laid on the deceased. Such approach of the trial Court is not correct and cannot be countenanced in law. The post mortem report, by itself, does not constitute substantive evidence. Whether the "cardio respiratory failure" had any nexus with the incident in question would have to be determined on the basis of the oral evidence of the eye witnesses as well as the medical officer concerned i.e. the expert witness who may be examined by the Prosecution as one of its witnesses."
10. In the present case also, the learned Advocate for the applicants wants this Court to conduct a mini trial and to rely upon solely on the opinion of the post-mortem report, which has been depreciated at the stage of discharge, as referred above. It has also been brought on record that trial has further been proceeded and some prosecution witnesses have also been examined, which has been denied for want of instructions by counsel for the applicants. The judgments relied upon by applicants are not applicable and are distinguishable.
11. In view of the above, this case is squarely falls on law as well as on facts by the judgment passed in the case of Ghulam Hassn Beigh (supra). Accordingly, I do not find any error in the impugned order. The application is dismissed.
Order Date :- 17.10.2022 Shafique Sl. No. 23 out of 335 fresh cases)