Allahabad High Court
Virendra vs State Of U.P. And Another on 9 August, 2024
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:129975 Reserved on: 09.04.2024 Delivered on: 09.08.2024 Court No. - 64 Case :- CRIMINAL REVISION No. - 4620 of 2022 Revisionist :- Virendra Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Ardhendu Shekhar Sharma,Mohd. Shahibe Alam,Pushpendra Singh,Ram Babu Sharma,Vijay Shantam Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.
1. Heard Mr. Ram Babu Sharma, the learned counsel for revisionist and the learned A.G.A. for State.
2. Perused the record.
3. This criminal revision has been filed by accused-revisionist-Virendra challenging the order dated 28.9.2022 passed by Additional District and Sessions Judge, Anoopshahr, District-Bulandshahar, in Sessions Trial No. 689 of 2020 (State Vs. Virendra) under Section 364 IPC, P.S. Dibai, District Bulandshahr, arising out of Case Crime No. 196 of 2018 (State Vs. Virendra) under Section 364 IPC, P.S. Dibai, District Bulandshahr, whereby Court below, in exercise of it's jurisdiction under Section 216 Cr.P.C., has framed additional charges under Sections 302 and 120-B IPC. against charge sheeted accused i.e. the revisionist.
4. Present criminal revision came up for admission on 12.1.2023 and this Court passed the following order:-
"Learned A.G.A. has accepted notice on behalf of State/O.P. No. 1.
Issue notice to O.P. No. 2 returnable at an early date.
List this case on 2.2.2023 as fresh. Meanwhile short reply/counter affidavit may be filed."
5. Subsequent to above order dated 12.1.2023, Office has submitted a report dated 1.2.2023 stating therein that as per the report of C.J.M. Bulandshahr, notice issued to opposite party 2 has been served. However, in spite of service of notice, no counter affidavit has been filed by opposite party 2 nor anyone has put in appearance on his behalf to oppose this criminal revision.
6. Record shows that an incident occurred on 6.5.2018. Babita, the daughter of first informant opposite party 2 went missing on 6.5.2018 at around 9 p.m. Consequently, Makhan Singh, the father of the missing girl lodged a missing person report with Kotwali Dibai, District Bulandshahr on 7.5.2018.
7. Since, the missing girl could not be located in spite of hectic search, therefore, Makhan Singh, the father of the missing girl lodged an F.I.R. dated 8.5.2018, which was registered as Case Crime No. 0196 of 20218, under Section 8 POCSO Act, P.S. Dibai, District Bulandshahr. In the aforesaid F.I.R., four persons namely Lalit Kumar, Virendra, Ganesh and Hukum Singh have been nominated as named accused, whereas two unknown persons have also been arraigned as accused.
8. The gravamen of the allegations made in the F.I.R. is to the effect that named accused have kidnapped the daughter of the first informant and in spite of hectic search, her whereabouts could not be located.
9. After aforementioned F.I.R. was lodged, the missing girl namely Babita was found in the grove of Gauri Shankar. She was, accordingly, recovered and information regarding the same was given to police. Thereafter, the prosecutrix was taken to C.H.C. Centre, Dibai, Bulandshahr, but was referred to District Hospital, Bulandshahr for further investigation and treatment. It appears that the victim was, thereafter examined at District Hospital, Bulandshahr, but was referred to Higher Center at Delhi. At this juncture, the statement of the prosecutrix was recorded by one lady Police Constable Ravita Saini. The same has been also incorporated in the case diary.
10. Subsequently, the lady Police Constable gave a certificate in terms of Section 65-B of the Evidence Act regarding the aforementioned video recording made by her. While the prosecutrix was being taken to Delhi, she succumbed to the poisonous substance consumed by her. Information regarding above appears to have been given to the police.
11. Subsequent to above, the inquest of the body of deceased was conducted on 8.5.2018. The witnesses of inquest (Panch witnesses), however, could not specifically opine regarding the cause of death of deceased and therefore could not categorize the nature of death of deceased as to whether it is homicidal or suicidal? Thereafter, post mortem of the body of deceased was conducted. In the opinion of Autopsy Surgeon, who conducted autopsy of the body of deceased, the cause of death of deceased could not be ascertained. As such, viscera of the deceased was preserved. However, no external injury was found by the Autopsy Surgeon on the body of deceased.
12. After having undertaken the aforesaid exercise, Investigating Officer proceeded to examine the first informant and other witnesses under Section 161 Cr. P. C. On the basis of above and other material collected by him during course of investigation, he came to the conclusion that complicity of all the four named accused is established in the crime in question. He, accordingly, submitted the police report dated 27.7.2018 in terms of Section 173 (2) Cr. P. C., whereby all the named accused were charge sheeted under Sections 306 and 120-B IPC.
13. Upon submission of aforementioned police report, cognizance was taken upon same by concerned Magistrate, in exercise of his jurisdiction under Section 190(1)(b) Cr.P.C. However, as offence complained of is triable exclusively by the Court of Sessions, consequently, the concerned Magistrate, in compliance of Section 209 Cr.P.C., committed the case to the Court of Sessions. Resultantly, Sessions Trial No. 689 of 2020 (State Vs. Viurendra) under Section 306 IPC came to be registered.
14. Concerned Sessions Judge proceeded with the trial. He, accordingly, in line with Section Section 211 Cr.P.C., framed charges against charge sheeted accused, but only under Section 306 IPC. The charge sheeted accused denied the charges so framed and pleaded innocence. In view of above, the trial procedure commenced.
15. Prosecution, in discharge of it's burden to bring home the charges so framed, adduced nine prosecution witnesses upto this stage. The details of the same are as under:-
(i). P.W.-1 Makhan Singh (first informant)
(ii). P.W.-2 Suresh
(iii). P.W.-3 Munish
(iv). P.W.-4
(v). P.W.-5 Lokesh Kumar
(vi). P.W.-6 Netrapal
(vii). P.W.-7 LC-1066 Ravita Saini
(viii). P.W. 8 Genda Lal
(ix). P.W.-9 S.I. Gulab Singh, Investigating Officer
16. It is apposite to mention here that out of Nine prosecution witnesses, adduced upto this stage 4 prosecution witnesses, who are witnesses of fact namely P.W. 2 Suresh, P.W. 3 Manish, P.W. 6 Netrapal and P.W. 8 Chander Lal were declared hostile.
17. At this juncture, Court below in exercise of it's jurisdiction under Section 216 Cr. P. C. first passed an order dated 28.09.2022 to the effect that in view of material on record, additional charges under Sections 302 and 120-B IPC need to be framed against accused. Accordingly, vide separate order dated 28.9.2022, Court below framed additional charges against accused-revisionist under Sections 302 and 120-B IPC.
18. The order dated 28.09.2022 passed by Court below, whereby Court below came to the conclusion that additional charges need to be framed against accused/revisionist is reproduced herein under:-
"पत्रावली पेश हुई। पुकारा गया। अभियुक्त वीरेन्द्र जेल से उपस्थित है। प्रकरण में धारा-364 भा०दं०सं के तहत विचारण हेतु तलब किया जाकर अभियुक्त का विचारण किया जा रहा है। अभियुक्त के विरुद्ध धारा-364 भा०दं०सं हत्या करने के लिये व्यपहरण करने का आरोप है।
समस्त पत्रावली के अवलोकन से स्पष्ट होता है कि पुलिस प्रपत्रों तथा अन्तर्गत बयान धारा-161 दं०प्र०सं० केस डायरी में पीड़िता को हत्या करने के आशय से जहर देकर मारने के बारे में बातें किया जाना गवाहान के बयान में दर्ज हैं। स्वयं मृतका की मृत्यु पूर्व बयान में उसे अभियुक्तगण के द्वारा उठा लिये जाने || और व्यपहरण कर लिये जाने व कोई दवा पिला देने का कथन दर्ज है। पीड़िता का ऐसी ही कथन उसकी मेडिकोलीगल रिपोर्ट दिनांकित 18.05.2018 में भी दर्ज है। विधि विज्ञान प्रयोगशाली की रिपोर्ट दिनांकित 15.10.2018 में पीड़िता के स्टमक, आंत, लिवर, किड़नी, स्पलीन के टुकड़े में अल्यूमीनियम फॉस्फाईड विष पाया जाना भी दर्ज है। केस डायरी पर्चा नं० 12 दिनांकित 28.06.2018 में गवाह नेत्रपाल पुत्र रेवती सिंह ने कहा है कि अभियुक्तगण आपस में बात कर रहे थे कि फैक्ट्री में ले जाकर भी इसके साथ बुरा काम करेंगे और नशे की चीज खिलाकर व नशीला इंजेक्शन लगाकर बाग में फेंक देंगे, यह एक-दो दिन में मर जायेगी। इसी प्रकार गवाह गेंदालाल पुत्र तेग सिंह ने भी अपने बयानों में कहा है। ऐसी दशा में अभियुक्त के विरुद्ध धारा - 302 व 120B भा०दं०सं का आरोप विरचन न्यायहित में आवश्यक है। तदनुसार अभियुक्त वीरेन्द्र के विरुद्ध धारा - 302 व 120B भारतीय दण्ड संहिता के तहत अतिरिक्त आरोप विरचित किया गया। पत्रावली वास्ते साक्ष्य दिनांक 11.10.2022 को पेश हो।
एन.जे.डी.जी. वेबसाईट के अनुसार इसी अपराध से सम्बन्धित पत्रावली सत्र परीक्षण सं० 595/2018 सरकार बनाम हुक्म सिंह आदि निर्णीत हो चुकी है। अतः उक्त पत्रावली रिकॉर्ड रूम से तलब हो।"
19. Thus, feeling aggrieved by the subsequent order dated 28.9.2022, whereby additional charges have been framed against accused-revisionist by Court below, revisionist has now approached this Court by means of present criminal revision.
20. Perusal of the order impugned dated 28.9.2022 passed by Court below, whereby Court below opined to frame additional charges against accused revisionist goes to show that Court below opined to frame additional charges on the following grounds:-
(1) In the papers accompanying the police report as well as the statements of witnesses examined under Section 161 Cr.P.C., it has been alleged that the deceased was murdered by giving her poison.
(2) In the dying declaration of the deceased, it is alleged that she was kidnapped and administered some medicine.
(3) Similar contention of the victim/prosecutrix is found in the medico legal report dated 18.5.2018.
(4) As per the viscera report dated 15.10.2018 of the deceased Aluminum Phosphide was found in different body parts of the deceased, which sent for chemical examination.
(5) As per C.D. Parcha No. 12 dated 28.6.2018, one of the witnesses namely Netrapal is alleged to have over heard the conversation of the accused to the effect that the prosecutrix be taken to the factory, wherein her modesty will be dislodged and thereafter she be administered some stupefying substance and injected with intoxicating injection and thrown in the grove.
(6) Similar is the statement of one Genda Lal.
21. Learned counsel for revisionist contends that the order impugned in present criminal revision is manifestly illegal and therefore liable to be set aside by this Curt. Attention of the Court was then invited to the order dated 28.9.2022, whereby Court below has assigned the reasons for framing additional charges against accused/revisionist. With reference to the said document, he submits that there is a clear recital in the aforesaid order that Sessions Trial No. 595 of 2018 (State Vs. Hukum Singh) pertaining to the same case crime number, has already been decided. On the above premise, it is, thus, urged by the learned counsel for revisionist that since other accused have already been acquitted by Court below in Sessions Trial No. 595 of 2018, therefore, no charge under Section 120-B IPC could have been framed against revisionist. Attention of the Court was then invited to the post mortem report dated 8.5.2018. On the basis of above, the learned counsel for revisionist contends that there is no medico legal report of the prosecutrix dated 18.5.2018 on the record. He has lastly invited the attention of the Court to the statement of the prosecutrix as recorded by the lady police Constable Ravita Saini.
22. According to the learned counsel for revisionist, the prosecutrix in her said statement has not alleged that any poisonous substance was administered to her by named/charge sheeted accused Virendra i.e. the revisionist.
23. On the above premise, the learned counsel for revisionist contends that since as per the material on record, no good ground is made out to frame alternate charges/additional charges against accused, therefore, the order impugned cannot be sustained and is, therefore, liable to be set aside by this Court.
24. Per contra, the learned A.G.A. has vehemently opposed the present criminal revision. He submits that order impugned in present criminal revision is perfectly just and legal and is, therefore, not liable to be interfered with by this Court. Court below has exercised it's jurisdiction diligently and only after perusing the case diary and the evidence, which has emerged during the course of trial that Court below has opined to frame additional charges against accused revisionist. Admittedly, it is the consistent prosecution case that the victim/prosecutrix was abducted, which fact has also been stated by the prosecutrix in her dying declaration. It is also an admitted fact that the death of the deceased has occurred on account of consuming some poisonous substance, while she was away from her home (during term of abduction) and also she was recovered from the grove of Hukum Singh. Learned A.G.A. also contends that since conspiracy is a closed door affair and therefore, the same is subject to trial evidence. The statements of the witnesses recorded in Sessions Trial No. 595 of 2018 cannot be either read in present trial nor can be relied upon by the accused revisionist qua his innocence. The power under Section 216 Cr. P. C. is wide and discretionary power vested with the Court to do complete justice to the victim. It is in the light of above that Courts have repeatedly held that no interference should be made in an order passed by Court under Section 216 Cr. P. C. as any interference by a superior Court will only protract the litigation. The order impugned manifests the discretion of the Court which discretion has been exercised in the light of material on record and therefore the exercise of discretion by Court below is well founded and therefore, the same can neither be said to be illegal nor arbitrary. Learned A.G.A. thus concludes that no interference is warranted by this Court in present criminal revision.
25. Having heard, the learned counsel for revisionist, the learned A.G.A. for State, upon perusal of record and considering the rival submissions urged by counsel for the parties, this Court finds that Court below has neither exercised it's jurisdiction with material irregularity so as to vititate the order impugned and warrant interference by this Court, nor the Court below has committed a jurisdictional error in passing the order impugned. It is not detailed that Court below has abruptly framed additional charges against accused-revisionist. To the contrary, Court below, vide first order dated 28.09.2022, has formed it's opinion for framing additional charges against accused-revisionist. The reasons recorded in the aforesaid order on the basis of which, Court below came to the conclusion that additional charges need to be framed against revisionist cannot be said to be illegal or arbitrary. The submission urged by the learned counsel for revisionist that as per the material on record, no charge under Sections 302 and 120-B IPC is made out, is misconceived as sufficient material exists on record to try the accused-revisionist under aforesaid Sections also. It is by now well settled that prosecution can be maintained against an accused even on the basis of grave suspicion. In the present case, it is not grave suspicion but the material on record, which has necessitated the framing of additional charge. In view of above, no interference is warranted by this Court in present criminal revision.
26. As a result, the present criminal revision fails and is liable to be dismissed.
27. It is, accordingly, dismissed.
Order Date :- 09.08.2024 Vinay