Court No. - 52
Case :- APPLICATION U/S 482 No. - 8866 of 2018 Applicant :- Noor Mohammad And Another Opposite Party :- State Of U.P. Counsel for Applicant :- Amit Mishra Counsel for Opposite Party :- G.A.
Hon'ble Rajul Bhargava,J.
Heard Sri Amit Mishra, counsel for the applicants and learned AGA.
Present application u/s 482 Cr.P.C. has been filed for quashing the order dated 19.2.2018 passed by Special Judge (Anti Corruption Act), court no. 2, Bareilly in S.T. no. 1189 of 2011 (State vs. Noor Mohammad) in Case Crime no. 620 of 2011, u/s 304 IPC, P.S. Devraniya, District Bareilly.
It has been submitted that on the basis of first information report lodged by first informant on 7.8.2011 in respect of the incident, which is said to have taken place on 7.8.2011 at 5.00 pm wherein it is alleged that on the instigation of applicant Noor Mohammad the applicant no. 2 Nanhe gave danda blow on the head of brother of the informant on account of which he became unconscious. Thereafter he was admitted in the hospital.
The record reveals that he died on 11.8.2011 on account of injury sustained by him on his head. During the course of the trial, an application was moved u/s 311 Cr.P.C. by the accused for summoning Dr. Shashank Shah, who had treated the deceased when he was alive and he was examined as PW-8 in the trial. Thereafter the accused moved an application that the deceased died on account of negligence of the said doctor and thus he may be summoned as an accused. The said application was rejected by the trial court, which was challenged in Criminal Revision no. 2520/2017 and this Court vide order dated 9.8.2017 simply issued notice to the opposite party without granting any stay.
It transpires from the record that after recording the statement of the accused u/s 313 Cr.P.C. an application for alteration of charge was moved by the applicant that prima facie offence u/s 304 IPC is not made out in view of the statement of doctor-PW-8. The said application has been rejected by the impugned order.
I have perused the impugned order, averments made in the first information report and post mortem report of the deceased.
I do not want to deal with the nature of injury at this stage on merit as it would cause prejudice to the accused revisionist during trial, however, I may record that all the submissions made by counsel for the revisionist that prima facie offence u/s 304 IPC is not made out, may be raised by them at the time of arguments, which shall be duly considered by the trial court. I do not find any illegality or impropriety in the impugned order.
The revision lacks merit and is accordingly dismissed.
Order Date :- 27.3.2018 Dhirendra/