Baij Nath Alias Kabil and Another vs State of U.P. Thru. Its Addl. Chief Secy. Home Lko. and Another

Court No. - 12

Case :- APPLICATION U/S 528 BNSS No. - 302 of 2025

Applicant :- Baij Nath Alias Kabil And Another Opposite Party :- State Of U.P. Thru. Its Addl. Chief Secy. Home Lko. And Another

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Counsel for Applicant :- Dharm Raj Mishra,Rajendra Prasad Mishra Counsel for Opposite Party :- G.A.,Aditya Mishra

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Hon'ble Alok Mathur,J.

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Objections filed on behalf of the opposite party no.2, are taken on record.

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Heard learned counsel for the applicants as well as learned AGA on behalf of the State-respondent.

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By means of the present writ petition under Section 482 of Cr.P.C. (now 528 of BNSS), the petitioners have challenged the entire proceedings in Complaint Case No.33432/2024, under Section 103 of the BNS, Police Station - Itiyathok, District - Gonda and the summoning order was challenged in a revision, which has also been rejected and both the orders dated 10.01.2025 as well as order dated 26.03.2025 have been assailed in the present petition under Section 482 Cr.P.C.

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It has been submitted on behalf of the petitioners that that Sunita Devi at around 4:00 PM had gone to her field where the accused persons, including Balram @ Shivkumar, Ram Bahadur, Kabil @ Baijnath, Rambabu have murdered her by strangulating her. It was further stated that the act has been done due to old enmity. In support of the compliant, the statement of Anil Kumar and Ram Babu and Ram Nath Mishra were recorded.

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The statement under Section 225 BNSS of the complainant

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was recorded. In support of his statement, the complainant has produced witnesses P.W.-1 Rajababu Tiwari and P.W.-2 Ram Nath Mishra.

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Witness Rajababu Tiwari has stated that of the date of the incident, he had gone to the Bazar to purchase fertilizer and in the meanwhile, the accused persons have reached the fields where his wife has gone and they were beating. While P.W.-2, Ram Nath Mishra has stated that he had reached the water tank close to the place of the incident and saw four people assaulting Sunita and he had named the accused as persons, who were involved in the said incident.

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On the basis of the aforesaid material, the Court was of the view that there were substantial material to summon the accused and accordingly, by means of the order dated 10.01.2025 has passed the summoning order.

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Counsel for the petitioner submitted that the entire facts which are on record, including the complaint and the statements under Section 223 of the BNSS would indicate a highly improbable story has been made out and even the facts are concerned in the proper perspective, they do not make out any offence against the accused so as to summon them and to face a trial in the present case. He has submitted that firstly, the alleged incident is dated 18.08.2024 and the complaint in the present case was filed only on 23.11.2025 which is after more than two and half months and no reason for the delay has been explained; the second ground urged by the counsel for the petitioners is that the complainant themselves had cremated the body of the deceased Sunita and without performing any postmortem it cannot be ascertained as to whether she died a natural death or otherwise. He submits that in absence of any Panchayatnama and postmortem report, the allegation against

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the petitioners cannot be sustained, even if they have to face the trial for the offence of murdered.

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Counsel for the respondents has vehemently opposed the petition. They have submitted that the complaint as well as the statement made under Section 223 of the BNSS clearly bring out the offence of murder against the petitioners and accordingly, no infirmity has been conducted by the trial court by summoning the accused. He submits that two witnesses, who had given the statement under Section 223 of BNSS have unequivocally stated that they had seen the accused assault the deceased Sunita when she had gone to tender her fields and the said fact is sufficient itself to indicate that the petitioners were involved in murdering the deceased and consequently, there is no infirmity in the summons issued against the petitioners. He further submits that it is at the stage of trial that evidence will be brought fourth indicating the role of the accused in the said incident and consequently, this Court would not interfere at this stage and quash the proceedings.

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I have heard the rival contentions of the parties and perused the record.

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From the rival contentions, it is noticed that the petitioners are accused of murdering Sunita. It is the case of the prosecution that on the date of the incident i.e. 19.08.2024 the deceased had gone to the fields where the four accused had assaulted her and strangulated her to death. There is no dispute that the body of the deceased was cremated by the complainant without any postmortem and accordingly, valuable and necessary piece of evidence was lost at the very inception. It seems that no first information report was lodged immediately after the incident, but in the complaint it has been mentioned that information was given to the police which did not register

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the first information report and subsequently, the complaint was sent to the Superintendent of Police by registered post. It is relevant to mention neither the date nor the copy of the information has been brought on record or annexed along with said complaint.

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Considering the rival contentions, it is noticed that even though the dead body was cremated by the side of the complainant themselves before any postmortem could be conducted and it is the submissions on behalf of the petitioners that in such situation, no conviction can be sustained.

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This aspect of the matter has been subject matter of consideration by the Supreme Court in numerous cases including Mani Kumar Thapa v. State of Sikkim, (2002) 7 SCC 157, where it has been consistent view of the Supreme Court that merely because the body (corpus) is not found cannot be a ground alone to drop the charges of murder against the accused. It was held that if there is other circumstantial evidence available pointing towards the acts of the accused resulting in the murder of the deceased and such evidence is clear and unequivocal, the charges can be proved in such a situation. It is noticed that in most of the cases where in absence of corpus delicti, conviction has been sustained the offence under Section 201 of the IPC was also included and the accused wherein were also charged with destruction of the evidence of the body. Relevant observations of the Supreme Court are as under :

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"4. ...... We do not find much force in this argument of Mr Lalit. It is a well-settled principle in law that in a trial for murder, it is neither an absolute necessity nor an essential ingredient to establish corpus delicti. The fact of the death of the deceased must be established like any other fact. Corpus delicti in some cases may not be possible to be traced or recovered. There are a number of possibilities where a dead body could be disposed of without a trace, therefore, if the recovery of the dead body is to be held to be mandatory to convict an accused, in may a case the

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accused would manage to see that the dead body is destroyed which would afford the accused complete immunity from being held guilty or from being punished. What is therefore required in law to base a conviction for an offence of murder is that there should be reliable and plausible evidence that the offence of murder like any other factum of death was committed and it must be proved by direct or circumstantial evidence albeit the dead body may not be traced. (See Sevaka Perumal v.State of TN, (1991) 3 SCC 471. Therefore, the argument that in the absence of corpus delicti the prosecution case shoud be rejected, cannot be accepted."

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Here, we are confronted with the facts where the body has been disposed of by the complainant themselves and there is no proper explanation as to why the complaint was lodged after an extraordinary delay of two and half months after the cremation of the deceased.

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In the present case, to bring the charge of murder against the petitioners, first it has to be established that there was an unnatural death and that death was caused by the petitioners. Even according to the testimony of the witnesses, they have only stated that they had seen the accused assaulting the deceased in her fields. There is no explanation as to the fact that when they saw the accused assaulting the deceased, why he did not attempt to save her or create a hue and cry or called the villagers, their presence at the site of occurrence would also has to be established and all the circumstantial evidence and sequence of event leading to her death will have to be unequivocally proved. By disposing off the body without postmortem, a vital piece of evidence has been destroyed. Now the case rests only on circumstantial evidence and the testimony of the witnesses. Whether in the present case it would be prudent to proceed specially when there is no plausible explanation or delay of over 2 months in lodging the complaint, and also for creation of the dead body without having a postmortem conducted, may be certain vital aspects pointing towards false implication.

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Without delving further into the facts from the aforesaid, I find that the matter requires consideration.

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Let counter affidavit be filed by the State within two weeks.

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List this case on 09.05.2025 top ten cases .

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Till the next date of listing, further proceedings of Complaint Case No.33432 of 2024, under Section 103 BNS, Police Station - Itiyathok, District - Gonda shall be kept in abeyance.

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[ Alok Mathur,J. ]

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Order Date :- 23.4.2025 KR

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Digitally signed by :- RABINDRA KUMAR High Court of Judicature at Allahabad, Lucknow Bench

Baij Nath Alias Kabil and Another v. State of U.P. Thru. Its Addl. Chief Secy. Home Lko. and Another

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Baij Nath Alias Kabil and Another v. State of U.P. Thru. Its Addl. Chief Secy. Home Lko. and Another

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