Dismissed

Pappu Kushwaha v. State of U.P. and 7 Others

Allahabad HC11 Oct 2023CRLR/1541/2023

Case brief

AI extract

What is this about?

In this criminal revision, the High Court dismissed the aggrieved informant's challenge against the trial court's discharge of two accused persons from a Section 307 IPC charge. The bench held that the medical evidence of simple injuries and lack of initial FIR averment regarding throttling rendered the charge unsupported, finding no error in remanding the case for other charges.

What did the court decide?

Revision stands dismissed; accused remanded to Magistrate for trial on remaining charges.

Pappu Kushwaha Vs State of U.P. and 7 Others — Murder and Culpable Homicide | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:196538

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Court No. - 50

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Case :- CRIMINAL REVISION No. - 1541 of 2023

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Revisionist :- Pappu Kushwaha Opposite Party :- State Of U.P. And 7 Others Counsel for Revisionist :- Rakesh Singh,Ramesh Chandra Yadav

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Counsel for Opposite Party :- G.A.,Satish Chandra Sinha

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Hon'ble Ram Manohar Narayan Mishra,J.

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Heard learned counsel for the revisionist, learned counsel for the opposite party Nos.2 to 8, learned AGA for the State and perused the material placed on record.

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Instant criminal revision has been preferred against the order dated 6.2.2023, passed by learned Additional District and Sessions Judge, Court No.3, Ghazipur, whereby the application 14-B moved by the accused persons namely, Shiv Chander Yadav and Ram Pravesh was partly allowed to the extent that the both accused persons were discharged from charge under Section 307 IPC. The revisionist, who is first informant/injured in present case being aggrieved by the impugned order has filed present criminal revision before this Court under Section 397/401 Cr.P.C.

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Factual matrix of the case in brief are that the informant/revisionist lodged an FIR with police station Jamaniya, District Ghazipur on 31.5.2020, at 15:15 hours against Shiv Chander Yadav and 9 accused persons, who are arrayed as private respondents in present writ petition with averment that he is resident of village Raghopur, Police

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Station Jamaniya. He was working under MNREGA scheme on 31.5.2020 at around 2:00 PM, the accused persons emerged in the meanwhile at his workplace and started talking to him in filthy manner and when he opposed, Shiv Chander exhorted his companions and the accused persons grabbed him forcefully and laid him in a tempo of Mukesh Raj and took him to their home where he was beaten badly by clubs and sticks. He screamed loudly and his family members got apprised of the incident. They informed local police. A commotion in the village took place due to this incident. They also took his Rs.12,000/-, which was kept by him in his pocket. They are threatening to kill him. The FIR was lodged under Sections 147, 323, 504, 506, 442, 427, 392 IPC on the basis of written report. The medico legal examination report of the injuries of the informant was conducted on the same day at 4:00 PM. Paragraph No.9 of the impugned order reveals that as many as 9 injuries were found on his person, which are as follows:- (i) contusion 4 X 2cm on right cheek, red in color; (ii) contusion 4 X 4cm on left cheek, red in color; (iii) bleeding coming from both nasal; (iv) lacerated wound size 2 X 0.5cm on left leg, bleeding present; (v) contusion size 6 X 4cm on left leg, red in colour, K.U.O., X- ray advised; (vi) contusion 4 X 4cm on left hand wrist, K.U.O., X-ray advised; (vii) lacerated wound size 2 X 0.5cm on right leg, bleeding present; (viii) contusion size 8 X 0.5 cm on right leg, red in colour; (ix) abrasion size 8 X 0.5 cm on right leg. In X-ray report of the injured dated 13.7.2020, no bony injury was found on his left leg and left wrist and in

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NCCT HEAD, it is stated that no significant abnormality is seen. The statement of injured/informant was recorded by the Investigation Officer during course of investigation, in which he stated FIR version and introduced a fact that prior to laying him in the tempo, the accused persons tried to kill him by grabbing him from behind and for this purpose, they wrapped his towel (gamchcha) on his neck and dragged him towards the tempo, in which they took him to their home. He got himself treated in Trauma Center, BHU fromwhere he was referred to District Hospital, Ghazipur. The injured was admitted in District Hospital, Ghazipur on 31.5.2020 and was discharged on next date i.e. 1.6.2020. The Investigating Officer added Section 307 IPC during investigation on the basis of statement of injured recorded under Section 161 Cr.P.C. The witnesses Ramesh Yadav and Inaram Yadav had given eye-witness account of the incident, in which accused persons had given beating to the injured by clubs and sticks. After investiation, the Investigating Officer filed chargesheet against all the nine accused persons, under Sections 147, 323, 504, 506, 442, 427, 279, 270, 188 IPC & Section 3 of Pandemic Act as well as Section 7 of CRLA Act. On commencement of trial, the accused persons Shiv Chander and Ram Pravesh filed an application for discharge before trial court and learned trial court after hearing submission of learned counsel for the accused applicants and learned ADC (criminal) and considering the material placed on record, observed that Section 392 IPC was dropped during investigation, which was amongst penal sections in FIR

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initially. Section 307 IPC was added during investigation on the basis of statement of informant/injured and thereafter some other witnesses. There is no averment in written report of the informant which formed basis of FIR that accused persons had wrapped gamchcha around his neck, which belongs to him. However, learned trial court has observed that this is well established fact that a written report is not encyclopedia. The injuries of first informant are found simple in nature in his medico legal examination report and no bonny injury was found in his X-ray report. It is also stated that no abnormality was seen in CT Scan of head of the injured. Therefore, the statement of injured regarding commission of offence under Section 307 IPC by the accused is a bald statement, which is not supported with the medical evidence. Learned court below reproduced provisions of Section 300 and 307 IPC in the impugned order. he also stated in impugned order that there is no averment in the FIR and statement of the injured under Section 161 Cr.P.C. that he offered any resistance to the violent act of the accused persons or any person on the spot intervened during the commission of the offenece. These facts made it obvious that had the intention of the accused persons was to kill the informant, they would not have left their act uncompleted. They could have completed their intention after taking the victim in a tempo to their own place. Therefore, on perusal of entire facts of the case, this thing become obvious that there is no sufficient material in support of the charge under Section 307 IPC against accused persons and barring Section 307

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IPC, other charges mentioned in charge-sheet are made out against the accused persons including applicant Shiv Chander and Ram Pravesh on the basis of this finding, learned court below has discharged the applicants from charge under Section 307 IPC. The matter was remanded by the trial court to the court of Magistrate and directed the accused persons to appear in the court of Magistrate on 15.2.2023.

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Per contra, learned counsel for the accused-respondents as well as learned AGA submitted that there is no illegality or irregularity in impugned order passed by learned court below whereby the accused persons have been discharged from Section 307 IPC and the matter was remanded back to the Court of Magistrate for trial in remaining penal sections, for which chargesheet has been filed by the police. The injuries of the victim were found to be simple in nature in his medico legal examination report and in supplementary report also, no serious injury has been recorded by the doctor. In the FIR, there was no mention of charge under Section 307 IPC and the same has been added during investigation mainly on the basis of statement of the victim under Section 161 Cr.P.C. but the averment of the victim with regard to charge under Section 307 IPC is not supported by the medico legal examination report.

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Section 227 of Cr.P.C. provides as under:-

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"227. Discharge. If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution

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in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing."

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The purpose of Section 227 and 228 Cr.P.C. is to ensure that the court should be satisfied that the accusation made against the accused is not frivolous and there is some material for proceeding against him. Hon'ble Apex Court in case of Kewal Krishan S/O Lachman Das vs Suraj Bhan And Anr, 1980 Supp (1) SCC 499, held that Section 227 of the Code of 1973 is a beneficent provision to save the accused from prolonged harassment which is a necessary concomitant of a protracted trial.

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Hon'ble Apex Court in State Of Bihar vs Ramesh Singh, 1977 AIR SC 2018 , held that if the evidence which the Prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in crossexamination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial, within meaning of Section 227 of Cr.P.C.

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Section 228(1) Cr.P.C. provides as under:-

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"(1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which-

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(a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, and

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thereupon the Chief Judicial Magistrate shall try the offence in accordance with the procedure for the trial of warrantcases instituted on a police report;

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(b) is exclusively triable by the Court, he shall frame in writing a charge against the accused."

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In the present case, there is no averment in the FIR that accused persons had tried to press the neck of the victim by a towel with intention to kill. This statement has been developed under Section 161 Cr.P.C. However, in support of this statement, no mark of injury was found in the medico legal examination of the victim on his neck. All the injuries are found simple in nature in medico legal examination report and no bonny injury was found. No grievous injury was found on the person of the victim inasmuch as in CT Scan report, no abnormality was detected in head of the injured. Most of the injuries found on the person of the victim are on non vital parts except two injuries on neck and nose. The impugned order passed by learned trial court does not suffer from any illegality, irregularity or perversity while discharging the accused persons from charge under Section 307 IPC and remanding the case for remaining section mentioned in chargesheet to the court of CJM or any other competent Magistrate. The revision is devoid of force and is liable to be dismissed.

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Accordingly, present revision stands dismissed .

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Order Date :- 11.10.2023 Kamarjahan

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Digitally signed by :- KAMARJAHAN ANSARI High Court of Judicature at Allahabad

Pappu Kushwaha v. State of U.P. and 7 Others

Case brief

What is this about?

What did the court decide?

Pappu Kushwaha v. State of U.P. and 7 Others

Case brief

What is this about?

What did the court decide?

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