Court No. - 78
Case :- CRIMINAL APPEAL No. - 3087 of 2020 Appellant :- Suresh Kanojiya Respondent :- State Of U.P. And 5 Others Counsel for Appellant :- Prem Shanker Prasad Counsel for Respondent :- G.A.
Hon'ble Syed Aftab Husain Rizvi,J.
Heard Sri Prem Shanker Prasad, learned counsel for the appellant and learned A.G.A. for respondent no.1.
The instant appeal has been filed against the order dated 15.10.2020 passed by Special Judge (S.C./ S.T.) Act, Mau, in criminal case no.89 of 2020 (Suresh Kanojiya vs. Seraz Shah and 4 others). By the impugned order, the learned trial court has rejected the application moved under Section 156 (3) Cr.P.C. by the appellant.
In brief, the facts are that appellant Suresh Kanojiya moved an application under Section 156 (3) Cr.P.C. before the court below alleging therein that he is a washer-man and a member of scheduled caste. On 03.08.2020 at about 8:00 a.m. his co-villager Seraz Shah and one Naseem, the son-in-law Mainu came at the house of the applicant and called his son Hemad Kanojiya (correct name is Hemant Kanojiya) and walked away with him. After an hour the applicant got information that aadhar card, pan card, purse and cloth of his son are lying near Sakhni Kuti on the bank of river Bhaisahi. The applicant, his family members and neighbours went there and confirmed that the said articles belong to his son- Hemant. Applicant make a search but Hemand was not traced then the applicant, his wife, his son Rakesh and some other co-villagers went to the house of Seraz and Mainu and asked about Seraz and Naseem then their family members told that they have gone somewhere and not disclosed where they are. Applicant gave information of the incident at police station Sarsena. Next day at 6.30 a.m., applicant got information that a dead body is lying near the Sakhni Kutivillage Bamhor on the bank of river Bhaisahi. On this information applicant, his wife and his son Rakesh and cousin Kallu went there and saw that his son was lying dead, there were grievous injuries on his body and blood was present on his nose, mouth, lips and head. The applicant gave the information at police station- Chiraiyakot and he was directed for police station Ranipur. The applicant gave the information at police station Ranipur. On this panchayatnama was conducted and body was sent to post-mortem but the report was not lodged. On 23.08.2020, at about 9:00 a.m. Meraz cousin of Seraz and Shahbuddin and Salauddin while sitting beside the pathway were talking that Seraz and Naseem have killed Hemant because Hemant has illicit relationship with the sister of Seraz and she was also willing to solemnize marriage with him. Applicant's sister-in-laws Sunita and wife of younger brother Kusum Devi saw and heard it. When it came to notice of the applicant, the applicant enquired it with Seraz and Salauddin then they abused and insulted him with casteist remarks. The applicant again moved an application at police station Chirayakot on 24.08.2020 but his report was not lodged then he sent an application by registered post to the Superintendent, Mau but no action was taken.
The learned court below called the report from concerned police station and after hearing the arguments of the learned counsel for the applicant and taking into consideration of the material on record by the impugned order has rejected the application under Section 156 (3) Cr.P.C.
Learned counsel for the appellant contended that the court below has rejected the application relying on report submitted by police on 27.09.2020. The said report has been prepared by the police with collusion of private parties and is completely unjust, improper and not sustainable in the eyes of law. The report has been submitted under the influence of respondent nos. 2 to 6. It is further contended that one ante-mortem injury 8 X 6 c.m. contusion on the right side of the skull have been found on the body of the deceased as per postmortem report which clearly indicates that the injury has been caused to the son of the applicant and is a case of murder. It is further submitted that the applicant has moved an application on 03.08.2020 clearly stating therein that his son was murdered by the accused-persons and thereafter thrown in the river but the court below completely ignored it. The impugned order is unjust, improper and against the eyes of law.
The learned A.G.A. submitted that in post-mortem report, the doctor has given his opinion that the deceased has died due to drowning and the appellant himself has given an application at police station Ranipur mentioning therein that his son has drowned in the river and at that time has not raised any suspicion regarding his death and after some time just due to village politics the appellant started trying to lodge the FIR and ultimately moved an application under Section 156 (3) Cr.P.C. alleging therein that his son having illicit relationship with sister of Seraz and that motive was found false and baseless in enquiry. Lastly it is submitted that a detailed enquiry was made by the concerned police station resulting in conclusion that deceased has died due to drowning. The learned court below after considering each and every aspect of the matter has rightly rejected the application. The order is detailed and reasoned order and does not suffer from any illegality or infirmity.
From the material on record, it transpires that the dead body of the deceased was found on 04.08.2020 on the bank of river Bhaisahi and an application was given by the appellant at police station Ranipur in which he alleged that on 03.08.2020 at 8.30 a.m. his son Suresh Kanaujiya went with Seraz and son-in-law of Mainu for bathing in the said river. His son has drowned into the river and his dead body has been found today and it is lying on the bank of the river. This application has been entered in the GD at serial no.19 on 04.08.2020, panchayatnama was conducted and dead body was sent for postmortem. In the postmortem report, the cause of death is mentioned as asphyxia due to ante- mortem drowning. It is true that one antemortem injury contusion of 8 X 6 c.m. has also been found on the right side of skull but it has no connection with the death of the deceased. The concerned police station has conducted a detailed enquiry and found that the allegations made in the application that the deceased having illicit relationship with the sister of Seraz and she was also willing to solemnize marriage with him have been found not to be true.
Learned counsel for the appellant specially placed reliance on application dated 03.08.2020 alleged to have been given by the appellant at police station Chirayakot. This paper appears to be fabricatedone, prepared afterwards just to make grounds. The other allegations made in the application also appears to be just to give colour to the whole matter and to make grounds. In the first information given to the police station on 04.08.2020, the appellant himself has alleged that his son has died due to drowning by bathing and no suspicion has been raised regarding his death.
Learned trial court has considered each and every aspect of the matter. Paragraph no.5 of the impugned order is very much relevant and it contains the appreciation of facts and material on record and the reasoning on which the learned court below has based its finding. The impugned order is well discussed and well reasoned. It appears that application has been moved with ulterior motives and it will be an abuse of process of law, if the case got registered on such application. The learned court below has rightly rejected the application. There is no infirmity or illegality in the impugned order.
Consequently, this criminal appeal has no force and is liable to be dismissed. Accordingly, the criminal appeal is dismissed.
Order Date :- 13.8.2021 C. MANI