Court No. - 83
Case :- APPLICATION U/S 482 No. - 11302 of 2021 Applicant :- Smt Hanswati @ Shivani And 2 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Upendra Kumar Singh Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
1. Heard Mr. Upendra Kumar Singh, learned counsel for applicants and learned A.G.A. for State.
2. Perused the record.
3. Present application under Section 482 Cr.P.C. has been filed challenging charge-sheet dated 10.02.2019 submitted in Case Crime No. 370 of 2018 under Sections 302, 201, 120B I.P.C, P.S. Gajraula, District-Pilibhit as well as entire proceedings of consequential Criminal Case No. 11134 of 2020 ( State of U.P. Vs. Ram Sewak and others) under Sections 302, 201, 120B I.P.C, P.S. Gajraula, District-Pilibhit, now pending in the court of Chief Judicial Magistrate, Pilibhit
4. Record shows that in respect of an incident, which is alleged to have occurred on 18.09.2018, a delayed F.I.R. dated 24.09.2018 was lodged by first informant/opposite party-2, Ramchandra, which was registered as Case Crime No. 370 of 2018 under Sections 147, 306 I.P.C, P.S. Gajraula, District- Pilibhit, In the aforesaid F.I.R. as many as 5 persons namely, Ramsewak, Satypal, Hashwati, Chhedalal and Munesh have been nominated as named accused.
4. Subsequent to aforesaid F.I.R., Police proceeded with statutory investigation of above mentioned case crime number in terms of Chapter XII Cr.P.C. During course of investigation, Investigating Officer recorded statements of various witnesses including that of first informant/opposite party-2in terms of Section 161 Cr.P.C. Upon completion of statutory investigation and on the basis of material collected during course of investigation, Investigating Officer submitted a charge sheet dated 10.02.2019 against three of the named accused, who are applicants in this application.
5. Learned counsel for applicant contends that after the dead body of deceased was recovered. Post mortem was conducted on the dead body of deceased. The Doctor who conducted autopsy of dead body of deceased opined that deceased died due to asphyxia as a result of strangulation. It is then submitted that there is no eye witness of occurrence. It is a case of circumstantial evidence. He has placed reliance upon judgement of Apex Court in Birdhi Chand Sarda vs State Of Maharashtra reported in 1984 (4) SCC 611 wherein the Apex Court has clearly observed that in case of circumstantial evidence, motive has to be categorically proved and consequently all the circumstances which form the chain of events leading to death of the deceased have to be duly proved. In support of his submission, it is also submitted that neither the chain of circumstances is complete nor the circumstances so gathered during course of investigation even prima facie point- at the guilt of the accused. On the aforesaid premise, he contends that applicants cannot be said to be guilty of offence alleged and therefore, present application is liable to be allowed by this Court.
5. Per Contra, learned A.G.A has opposed present application. He submits that after registration of F.I.R., matter was duly investigated by Investigating Officer. During course of investigation of above mentioned case crime number witnesses were examined by Investigating Officer under Section 161 Cr.P.C. Witnesses, who were examined under Section 161 Cr.P.C has supported the prosecution case. Therefore, it cannot be said that there is no evidence to support prosecution case. However on the basis of material collected during course of investigation, which is admittedly adverse to the applicant. Investigating Officer submitted charge-sheet dated 10.02.2019 wherein 17 prosecution witnesses have been nominated. As such, this Court at this stage cannot examine the reliability or credibility of witnesses, who have been examined during course of investigation. On the aforesaid premise, learned A.G.A. contends that at this stage it cannot be said that prosecution of applicant is false or there is no evidence to support the prosecution of applicants. With regard to ratio laid down by apex Court in Sharad Birdhi Chand Sarda (Supra), learned A.G.A. contends, this Court cannot evaluate the evidence of witnesses at this stage and it is to be examined only during course of trial. On the aforesaid premise, learned A.G.A. contends that present application is liable to be dismissed.
7. Having heard learned counsel for applicant, learned A.G.A. for State and upon perusal of material on record and looking into the facts of the case, at this stage it cannot be said that no offence is made out against applicants. All the submissions made at the Bar relate to the disputed defence of applicants, which cannot be adjudicated upon by this Court in exercise of its jurisdiction under section 482 Cr.PC. That Court cannot appraise and appreciate evidence to record a finding one way or other. At this stage only prime facie case is to be seen in the light of law laid down by Supreme Court in R.P. Kapur v. State of Punjab, AIR 1960 SC 866 and State of Haryana v. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar v. P.P. Sharma, 1992 SCC (Cr.) 192 and lastly Zandu Pharmaceutical Works Ltd. v. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.) 283.
8. In view of above, present application fails and is liable to be dismissed.
9. It is accordingly dismissed.
Order Date :- 30.7.2021 YK