Dismissed

Laxminarayan Patel and 2 Others v. State of U.P. and Another

Allahabad HC9 Dec 2024CRLR/1819/2024

Case brief

AI extract

What is this about?

The High Court dismissed a criminal revision challenging the dismissal of a discharge application under Section 227 Cr.P.C. The trial court had held that a prima facie case under Section 307 IPC was made out based on the severity of injuries and medical evidence. The High Court upheld the trial court's order, reiterating that at the discharge stage, the court must examine if a prima facie case exi

What the court decided

AI extract

Laxminarayan Patel and 2 Others Vs State of U.P. and Another — Bail and Remand | Allahabad HC (2024)

¶1

Neutral Citation No. - 2024:AHC:193114

¶2

Court No. - 86

¶3

Case :- CRIMINAL REVISION No. - 1819 of 2024

¶4

Revisionist :- Laxminarayan Patel And 2 Others Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Atmaram Nadiwal,Dinesh Kumar Yadav Counsel for Opposite Party :- G.A.,Monu Upadhyay

¶5

Hon'ble Ram Manohar Narayan Mishra,J.

¶6

This criminal revision has been filed against the order dated 16.3.2024 passed by Special Judge, Exclusive Court, (POCSO Act), Maharajganj in Special Case no. 1114 of 2023 arising out of Case Crime no. 467 of 2023, under sections 323, 504, 506, 325, 307 IPC, P.S. Kotwali, District Maharajganj whereby learned trial court dismissed the application under section 227 Cr.P.C. filed by the revisionists.

¶7

Heard learned counsel for the revisionists, learned counsel for respondent no. 2 and learned AGA for the State.

¶8

According to prosecution version, FIR was lodged at the instance of informant Jai Singh Patel on the basis of written report on 17.8.2023 at 15:19 hours stating that on 17.8.2023 at around 11 AM, his son, Gangeshwar had gone to harvest Bajra when he was returning to home, his co-villagers Dheeru, Laxmi, Shiv Prakash, Satish waylaid him and started abusing him, they assaulted him by lathi, danda and knife and threatened with life; his son suffered serious injures in the incident; his treatment was being undertaken at government hospital, Maharajganj from where doctor has referred him to higher medical centre, Gorakhpur; FIR was lodged under sections 323, 504, 506 IPC.

¶9

On perusal of record it appears that injured Gangeshwar was referred to higher centre on 17.8.2023 from district hospital, Maharajganj and he was treated at BRD medical college on same day, from where he was discharged on 22.8.2023 when his condition was properly managed. In medical report, it is stated that patient made complaint of assault around 10:30 am on 17.8.2023, ENT bleed was present. He was taken to BRD medical college, Gorakhpur at 1:22 pm on 17.8.2023. In x-ray report, two fracture on left leg and one fracture on the left hand were found. The patient suffered lacerated wound

¶10

¶11

over nose, left palm, lower lip, right and left leg. Doctor in his statement recorded before the IO stated that patient suffered injuries on his nose due to which he was feeling difficulty in breathing. Apart from that he suffered injuries on some other parts of the body also. He was breathing from mouth. On the basis of oral testimony and medical evidence, section 307 IPC was added during investigation in penal section. The injured stated in his statement under section 161 Cr.P.C. that on 17.8.2023 at around 11 am he was assaulted by accused persons by iron rod, knife and axe; the accused persons fled away when co-villagers reached on the spot. After concluding investigation, charge-sheet was filed against all named accused persons under sections 323, 504, 506, 325, 307 IPC. The 3 accused persons filed an application for discharge before the trial court, which has been dismissed by the impugned order.

¶12

Learned counsel for the revisionists submitted that in FIR it is stated that accused persons assaulted the victim by lathi danda and knife whereas victim in his statement before the IO stated that he was assaulted by lathi danda and knife and axe but there is no incised wound found on his person, therefore, it is evident that ocular testimony is not believable. He next submitted that nature of injuries found on the person of injured itself fortifies the defense version that the injured met with some accident in which injuries were received by him and revisionists are not author of the injuries. He next submitted that on a perusal of FIR, statement of witnesses, injury and x-ray report of the injured it cannot be discerned that the injured was assaulted with intention to kill. Inasmuch as no injury found on persons of the injured is caused by any dangerous weapon or object. There is no opinion of the doctor that injuries were dangerous to life. Infact, no case under section 307 IPC is made out on the basis of FIR version and evidence collected during investigation. FIR itself was lodged under sections 323, 504, 506 IPC. The accused persons had prayed for discharge from charge under section 307 IPC which has wrongly been rejected by the trial court in the impugned order. Nature of injuries suggest that injured fell down on side of mouth on the road and suffered injuries on the nose, hand and neck. The accused persons are falsely implicated in the case due to partition dispute as admittedly the injured and accused persons both are co-sharers. Investigation has not been done fairly in the case. The trial court has dismissed the discharge application in cursory manner arbitrarily without considering the grounds taken therein.

¶13

¶14

Per contra, learned counsel for respondent no. 2 submitted that doctor who treated the victim has admitted that injured would have died due to nasal injuries as he was facing difficulty in breathing, life of the injured could be saved early by taking proper treatment. He next submitted that section 307 IPC has rightly been added in penal sections during investigation and at the stage of framing of charge, only prima facie case has to be seen truthfulness, reliance and authenticity of prosecution version cannot be gone into at the stage of framing of charge on deciding discharge application. He also submitted that in FIR and in statement of witnesses recorded during investigation, there is no mention of any motorcycle, therefore, story of fall of victim from motorcycle is concocted.

¶15

The injured suffered fracture in nasal bone and left hand and fracture on two places on left leg. The bed head ticket of the injured of BRD Medical College reveals that his condition was serious when he was admitted there on 17.8.2023 and discharged on 29.8.2023. The injured in his statement under section 161 Cr.P.C. recorded by the IO on 18.8.2023 at BRD Medical College, Gorakhpur implicated Sheo Prasad, Satish, Laxmi Narayan and Deeru Patel as assailants. Informant and independent witnesses have also deposed regarding complicity of the accused persons in their statement under section 161 Cr.P.C.

¶16

In present case, FIR has been lodged promptly at the instance of father of the injured just after two hours of the incident. The doctor, who treated the patient has stated in his statement that condition of patient was serious, due to nasal injuries he could not breathe from nose and he had to breathe from mouth. Revisionist and co-accused Satish are named in the FIR as assailants, their complicity has been stated in statement of the informant, injured and independent witnesses. Keeping in view the nature of injuries and grievous hurt at different part of body of the injured and condition of the injured who was treated in three different medical centre after the incident and his condition could be managed by prompt and appropriate medical add it cannot be observed at this stage that no case under section 307 IPC is made out against the revisionist.

¶17

Hon'ble Supreme Court in a recent judgement Vishnu Kumar Shukla and another vs. State of U.P. and another in Criminal Appeal no. 3618 of 2023 decided on 28.11.2023 observed as under:

¶18

"21. In Niranjan Singh Karam Singh Punjabi v Jitendra B Bijjaya, (1990) 4 SCC 76, this Court was alive to reality, stating that '… it cannot be

¶19

¶20

expected even at the initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.' If a view gives rise to suspicion, as opposed to grave suspicion, the Court concerned is empowered to discharge the accused, as pointed out in Sajjan Kumar v Central Bureau of Investigation, (2010) 9 SCC 368. The Court, in Dinesh Tiwari (supra) had reasoned that if the Court concerned opines that there is ground to presume the accused has committed an offence, it is competent to frame a charge even if such offence is not mentioned in the Charge Sheet. As to what is 'strong suspicion', reference to Dipakbhai Jagdishchandra Patel v State of Gujarat, (2019) 16 SCC 547 is warranted, where it was explained that it is '… the suspicion which is premised on some material which commends itself to the court as sufficient to entertain the prima facie view that the accused has committed the offence.'

¶21

In a recent judgement viz. State of Gujarat v Dilipsinh Kishorsinh Rao, 2023 INSC 894, this Court held:

¶22

'7. It is trite law that application of judicial mind being necessary to determine whether a case has been made out by the prosecution for proceeding with trial and it would not be necessary to dwell into the pros and cons of the matter by examining the defence of the accused when an application for discharge is filed. At that stage, the trial judge has to merely examine the evidence placed by the prosecution in order to determine whether or not the grounds are sufficient to proceed against the accused on basis of charge sheet material. The nature of the evidence recorded or collected by the investigating agency or the documents produced in which prima facie it reveals that there are suspicious circumstances against the accused, so as to frame a charge would suffice and such material would be taken into account for the purposes of framing the charge. If there is no sufficient ground for proceeding against the accused necessarily, the accused would be discharged, but if the court is of the opinion, after such consideration of the material there are grounds for presuming that accused has committed the offence which is triable, then necessarily charge has to be framed.

¶23

At the time of framing of the charge and taking cognizance the accused has no right to produce any material and call upon the court to examine the same. No provision in the Code grants any right to the accused to file any material or document at the stage of framing of charge. The trial court has to apply its judicial mind to the facts of the case as may be necessary to determine whether a case has been made out by the prosecution for trial on the basis of charge-sheet material only.

¶24

If the accused is able to demonstrate from the chargesheet material at the stage of framing the charge which

¶25

¶26

might drastically affect the very sustainability of the case, it is unfair to suggest that such material should not be considered or ignored by the court at that stage. The main intention of granting a chance to the accused of making submissions as envisaged under Section 227 of the Cr. P.C. is to assist the court to determine whether it is required to proceed to conduct the trial. Nothing in the Code limits the ambit of such hearing, to oral hearing and oral arguments only and therefore, the trial court can consider the material produced by the accused before the I.O.

¶27

It is settled principle of law that at the stage of considering an application for discharge the court must proceed on an assumption that the material which has been brought on record by the prosecution is true and evaluate said material in order to determine whether the facts emerging from the material taken on its face value, disclose the existence of the ingredients necessary of the offence alleged.

¶28

The defence of the accused is not to be looked into at the stage when the accused seeks to be discharged. The expression "the record of the case" used in Section 227 Cr. P.C. is to be understood as the documents and articles, if any, produced by the prosecution. The Code does not give any right to the accused to produce any document at the stage of framing of the charge. The submission of the accused is to be confined to the material produced by the investigating agency.

¶29

The primary consideration at the stage of framing of charge is the test of existence of a prima-facie case, and at this stage, the probative value of materials on record need not be gone into. This Court by referring to its earlier decisions in the State of Maharashtra v. Som Nath Thapa, (1996) 4 SCC 659 and the State of MP v. Mohan Lal Soni, (2000) 6 SCC 338 has held the nature of evaluation to be made by the court at the stage of framing of the charge is to test the existence of primafacie case. It is also held at the stage of framing of charge, the court has to form a presumptive opinion to the existence of factual ingredients constituting the offence alleged and it is not expected to go deep into probative value of the material on record and to check whether the material on record would certainly lead to conviction at the conclusion of trial."

¶30

With the foregoing discussion and aforesaid judgement of Hon'ble Supreme Court with regard to scope of provision under section 227 Cr.P.C., I am of the considered opinion that learned trial court has rightly dismissed the application under section 227 Cr.P.C. for discharge filed by the revisionist in the present case. There is no

¶31

¶32

illegality or irregularity in the impugned order passed by the trial court.

¶33