Dismissed

Hari Krishna Verma @ Badkan v. State of U.P. Thru. Prin. Secy. Home Deptt. Lucknow and Another

Allahabad HC31 May 2023/1034/2022

Case brief

AI extract

What is this about?

In a criminal appeal challenging a summoning order under Sections 302/324/506 IPC and SC/ST Act arising from an alleged suicide alleging murder, the High Court dismissed the appeal. The court held that the trial Court correctly examined the protest application and found a prima facie case, while the appellant's remedy lay in moving a discharge application later.

What did the court decide?

The criminal appeal was dismissed with liberty to move an appropriate discharge application before the trial Court.

Hari Krishna Verma @ Badkan Vs State of U.P… — Criminal Trial and Appeal | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC-LKO:39242 Reserved on 20.04.2023 Delivered on 31.05.2023

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Court No. - 28

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Case :- CRIMINAL APPEAL No. - 1034 of 2022

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Appellant :- Hari Krishna Verma @ Badkan Respondent :- State Of U.P. Thru. Prin. Secy. Home Deptt. Lucknow And Another

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Counsel for Appellant :- Anuj Pandey,Bal Keshwar Srivastava,Sudhir Kumar Singh,Vivek Tiwari Counsel for Respondent :- G.A.,Shailesh Kumar Singh

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Hon'ble Shree Prakash Singh,J.

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Heard Sri Bal Keshwar Srivastava, learned counsel for the appellant, Sri Shailesh Kumar Singh, learned counsel for the opposite party no. 2, Sri Aniruddh Kumar Singh, learned AGA-I for the State and perused the record.

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The instant appeal has been filed with a prayer that the impugned order dated 12.11.2020 passed by the Additional District and Sessions Judge IInd/Special Judge SC/ST Act, Lakhimpur Kheri in Special Case No. 224 of 2020 arising out of Case Crime No. 322 of 2015, under Sections 302, 324, 506 of the IPC and 3(2)(V) of the SC/ST Act, relating to Police Station, Kotwali, District Lakhimpurt Kheri may kindly be set-aside.

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The factual matrix of the case is that a written complaint was made by the opposite party no. 2 which was registered as Case Crime No. 322 of 2015, under Sections 302, 324, 506 of the IPC and 3(ii)V of the SC/ST Act, relating to Police Station Kotwali, District Lakhimpur Kheri on 22.02.2015. After the incident the post-mortem of the deceased was conducted on 21.02.2015 at King George Medical University, Lucknow and as per the report, ante-mortem burn injury was ascertained for cause of death. After the aforesaid, the Investigating Officer recorded the statement of the complainant under Section 161 CrPC and also the statements of the locals on the same day. He has also collected the medical documents of the deceased, Amit Kumar from SIPS Hospital, Lucknow. After the aforesaid investigation, it was found that the deceased was admitted in SIPS Hospital as per the statement of the deceased recorded by the attending Doctor and the deceased himself has poured kerosene oil and burnt himself. The Investigating Officer submitted Final Report on 23.05.2015, and after lapse of five years, i.e., on 30.01.2020 the brother of the deceased moved a protest application

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before the trial Court and submitted that the Kerosene Oil was poured by the accused and as a result of which the deceased died. After the aforesaid application, the learned trial Court passed the order on 12.11.2020 and accepted the protest application and summoned the accused. The order dated 12.11.2020 is under challenge in the instant criminal appeal.

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The contention of the learned counsel for the appellant is that the learned trial Court without application of judicial mind and without considering the medical document of SIPS Hospital, Lucknow, dying declaration of the deceased, statement of R.K. Mishra of the SIPS Hospital and the CCTV footage including the CDR of Sri Ram Niwas, has passed the impugned summoning order while accepting the protest application submitted by the brother of the deceased. He submits that the impugned order is perverse and erroneous as there is a major contradiction in the statements of the prosecution witnesses and the trial Court has fully ignored the dying declaration of the deceased that he himself had poured the Kerosene Oil over him and the reason for pouring the Kerosene Oil has also been stated by the deceased that he was puzzled with the demand of his girlfriend who was asking money for marriage. He further submitted that the learned trial Court has also ignored that the Doctor who has given statement had no reason to falsely depose against the prosecution version or prepare the forged papers.

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Adding his arguments, he submits that the protest application was filed after lapse of five years as the charge-sheet was submitted in the year 2015, whereas, the application for protest was moved in the year 2020 and this aspect of the case has also been ignored by the trial Court. The trial Court also ignored the fact that the matter was thoroughly investigated and there were scientific evidence like CCTV footage, CDR and other medical documents which were given by Doctor R.K. Mishra to the Investigating Officer. Further submission is that as per the CDR, the presence of the appellant is elsewhere than the place of the incident and therefore his involvement in the case is to be out-rightly rejected. He has also shown other falsity and discrepancies in the story of the prosecution and submits that it is a malicious prosecution of the appellant as he was never involved in committing such offence and he is being implicated because the deceased was working as Peon with him and for undue expectation of compensation which was not given by the appellant, the present First Information Report has been lodged naming him. In support of his contention, he has also placed reliance on a case rendered in Appeal (Crl) 1018 of 2002, P.V. Radhakrishna Vs. State of Karnataka and further Criminal Appeal No. 360-377 of 2011, arising out of SLP (Criminal) Nos. 3008-3025, Harshendra Kumar D. Vs. Rebatilata Koley Etc. and Application under Section 482 No. 2971 of

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2018, Md. Salaam Vs. State of U.P. and Another and submitted that the case of the present appellant is fully covered with the ratio of judgements aforesaid. Further submission is that the order impugned dated 12.11.2020 is erroneous, perverse and has been passed without application of judicial mind and that too is against the settled proposition of law propunded by the Apex Court and thus the same may be set-aside.

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On the other hand, the learned counsel appearing for the State has vehemently opposed the contention aforesaid and submits that initially an application for lodging the First Information Report was moved, wherein, the investigation was conducted and it was found on the basis of certain documents, that the appellant is not involved in committing the offence. but as there was remedy available with the complainant to move protest application, he moved the same, though disputably after five years and as there was substance in the application moved by the complainant, i.e., the brother of the deceased, therefore the learned Magistrate after considering the facts and evidences in detail has passed the order on 12.11.2020. He next submits that the enmity is proved as the appellant himself has mentioned this fact that the deceased was working as a peon and there was certain dispute. He further submitted that the learned trial Court has also discussed the facts and circumstances including the evidences which, prima facie, goes against the appellant and has given its finding. He next submits that there is no illegality or perversity in the impugned order dated 22.11.2020 and the present appellant has raised the disputed questions of fact and, therefore, he has remedy before the trial Court by way of moving a discharge application at the appropriate stage. Thus submission is that the appellant is not entitled for any relief.

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Per contra, the learned counsel for the opposite party no. 2 has also vehemently opposed the contention aforesaid and submits that the learned trial Court has committed no error in passing the impugned order and the remedy which was available to the complainant was availed by him and, therefore, while considering the same, the impugned order has been passed and, thus no interference is warranted by this Court

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Having heard the learned counsel for the parties and after perusal of the material placed on record, it transpires that initially a First Information Report was lodged under Sections 302, 324, 506 of the IPC and 3(ii)(V) of the SC/ST Act and after investigation, Final Report was submitted by the Investigating Officer. Thereafter, a protest application was moved, though delayed but the right remedy has been availed and the learned trail Court after hearing, has passed the order impugned.

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This Court has also noticed the fact that only on the basis of the statement of the deceased recorded by the Doctor in the hospital, though the same was never verified, that the deceased has stated that he himself has poured the kerosene oil, Final Report has been filed but the Investigating Officer ignored the fact that whether there are other corroborative evidences including the substantive evidences against the appellant or not. Once the protest application was filed, the learned trial Court discussed all the evidences and factum and found that there is substance in the assertion made in the protest application and therefore, prima facie, being satisfied he accepted the protest application and has summoned the accused appellant.

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When this Court examined the order of the trial Court impugned in this appeal, it transpires that the Magistrate has rightly taken up the issue as the remedy for filing the protest application was not disputed and the factum and the evidences, which were brought before the trial Court, were indicative of the fact that there is prima facie case of committing offence against the appellant and, therefore, he summoned the appellant.

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This Court finds that in fact the right of the complainant for moving the protest application is envisaged only with an intent, not to leave the complainant remediless. It is not a case where without discussing the facts and evidences, the order has been passed but after thoroughly discussing, the materials available through protest application, the impugned order has been passed by the trial Court in the instant matter.

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The judgement, which has been cited by the appellant, are not applicable in the instant matter as the factual matrix of the present matter including the severity of the charges are different than that of the aforesaid judgements.

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Further after the order dated 12.11.2020, the appellant has remedy to move discharge application at the appropriate stage while putting the right facts and this is not appropriate stage to deal with the disputed question of fact, by this Court.

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Consequently, there is no merit in the instant appeal and thus, it is hereby dismissed .

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However it is open to the appellant to move appropriate application before the trial Court concerned.

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Order Date:- 31.05.2023 Anurag

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Digitally signed by :- ANURAG SINGH High Court of Judicature at Allahabad, Lucknow Bench

Hari Krishna Verma @ Badkan v. State of U.P. Thru. Prin. Secy. Home Deptt. Lucknow and Another

Case brief

What is this about?

What did the court decide?

Hari Krishna Verma @ Badkan v. State of U.P. Thru. Prin. Secy. Home Deptt. Lucknow and Another

Case brief

What is this about?

What did the court decide?

What the court decided

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