Dismissed

Raju @ Devenra Kumar Tiwari and 3 Others v. State of Up and Another

Allahabad HC2 Aug 2024CRLR/212/2024

Case brief

AI extract

What is this about?

The High Court dismissed the criminal revision challenging the dismissal of a discharge application. The court held that procedural irregularities or omissions in investigation do not justify setting aside the impugned order as the prosecution case was made out.

What did the court decide?

Criminal Revision No. 212 of 2024 dismissed; petitioners directed to surrender forthwith.

Raju @ Devenra Kumar Tiwari and 3 Others vs… — Civil Procedure and Limitation | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC:124597

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Court No. - 84

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Case :- CRIMINAL REVISION No. - 212 of 2024

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Revisionist :- Raju @ Devenra Kumar Tiwari And 3 Others Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Kundan Rai Counsel for Opposite Party :- G.A.

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Hon'ble Sanjay Kumar Singh,J.

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Heard learned counsel for the revisionists, learned Additional Government Advocate for the State/opposite party No.1 and perused the record.

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This criminal revision under Section 397/401 Cr.P.C. has been filed by the revisionists for setting aside the impugned order dated 20.10.2023 passed by Civil Judge (Junior Division)/Judicial Magistrate, Mahoba in Case No. 16472 of 2023 (State of U.P. Vs. Raju @ Devendra Kumar Tiwari and others) arising out of Case Crime No. 0005 of 2023, under Sections 452, 323, 504, 506 IPC, police station Khanna, district Mahoba whereby discharge application dated 30.09.2023 under Section 239 Cr.P.C. of the revisionists has been rejected.

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Learned counsel for the revisionists argued that complainantRamji Dwivedi, who is injured also, lodged the first information report on 14.01.2023 for the alleged offence under Sections 452, 323, 504,506 IPC against four accused persons, namely, Raju, Pawan, Sachin and Daddu Tiwari. Referring the statement under Section 161 Cr.P.C. of complainant/injured, it is submitted that although the injured has levelled allegation of assault against all the revisionists but he has also stated inter alia that brother-in-law of accused Raju came at the spot and saved him. Similarly, Smt. Krishna Devi wife of the injured reiterating the prosecution version also stated that brother-in-law of Raju tried to save her husband but Investigating Officer has not recorded the statement of brother-in-law of Raju, therefore, trial will vitiate. It is also argued that the Investigating Officer in the case diary has also mentioned that when he tried to elicit the truth, several persons of the village told that in the said incident, Sachin and Kallu @ Daddu Tiwari were involved. The accused Pawan and Raju were not present at the spot, even then, charge-sheet has been submitted against them.

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On the strength of aforesaid facts, it is argued that the impugned order dated 20.10.2023 is not sustainable and is liable to be set aside.

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On the other hand, learned Additional Government Advocate for the State vehemently opposed by contending that merely by not recording the statement of a person, who intervened in the matter, will not vitiate the trial because injured has made allegation of assault against all the named accused persons, who have been charge-sheeted and are revisionists in the present case. Referring the medical examination report, he has also pointed out that injured has received as many as 05 injuries on his body. He next submits that the law is well settled that even the benefit of defective investigation cannot be extended to accused. Considering the allegations and material evidence on record, the prima facie offence against the accused/revisionists is made out, therefore, there is no illegality in the impugned order.

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Having examined the matter in its entirety and considering the submissions advanced by learned counsel for the parties, I find that it is not in dispute that injured has received five injuries on his body. The injured as well as his wife has made allegation of assault against the revisionists. There is no material contradiction with regard to prosecution case as mentioned in the first information report as well as in the statements of the injured and his wife. This Court is of the view that the statement of injured person cannot be brushed aside at the stage of considering the discharge application or framing of charge. It is also well settled that at the stage of considering the discharge application the defence of the accused cannot be taken into consideration. Even the charge can be framed on strong suspicion against the accused persons in view of the judgment of the Apex Court in the case of Palwinder Singh Vs. Balwinder Singh and others, (2008) 14 SCC 504. The grounds taken in the revision reveal that many of them relate to disputed questions of facts. This Court is of the view that the appreciation of evidence is a function of the trial court at the appropriate stage. It is crystallized judicial view that at the stage of discharge, the Court is to examine the materials only with a view to be satisfied that prima facie case of commission of offence alleged has been made out against the accused person. If there is ground for presuming that the accused has committed the offence, the Court can justifiably say that prima facie case exists against the accused. Marshaling and appreciation of evidence is not in the domain of the trial court at the time of considering discharge application. The broad test to be applied is whether the materials on record, if

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unrebutted makes a conviction reasonably possible. The final test of guilt is not to be applied at that stage.

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Considering the facts, circumstances and materials available on record of this case, I do not find any illegality, infirmity or perversity in the impugned order, therefore, no case is made out to interfere in the impugned order. The concerned trial Court while passing the impugned order dated 20.10.2023 has considered all the relevant materials on record and decided the discharge application of the revisionists in accordance with law in the light of well settled principle laid down by the Apex Court. The revisionists have a remedy under the law to raise all such plea in his defence before the trial court at the appropriate stage.

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In view of the above, the present criminal revision lacks merit and is, accordingly, dismissed.

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The revisionists are directed to surrender before the trial Court forthwith.

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A copy of this order be also sent to the concerned trial Court.

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Order Date :- 2.8.2024 Shubham

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Digitally signed by :- SHUBHAM KUMAR AGRAHARI High Court of Judicature at Allahabad

Raju @ Devenra Kumar Tiwari and 3 Others v. State of Up and Another

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Raju @ Devenra Kumar Tiwari and 3 Others v. State of Up and Another

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