Court No. - 44
Case :- APPLICATION U/S 482 No. - 45394 of 2018 Applicant :- Vinod Kumar Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Pankaj Dwivedi Counsel for Opposite Party :- G.A.
Hon'ble Rahul Chaturvedi,J.
Heard learned counsel for the applicant, learned AGA for the State and perused the record.
The jurisdiction of 482 Cr.P.C. is sought to be invoked by the applicant challenging the orders of A.C.J.M., Court No.11, Agra by which the application under Section 323 Cr.P.C. was turned down by the Magistrate and then challenged by means of Criminal Revision, learned revisional court too on 11.10.2018 confirmed the order of learned Magistrate hence this present Crl. Misc. Application.
From the perusal of the record it is borne out that, an eight days belated FIR was lodged by Vedram (father of the applicant) against four named accused persons which was an after thought and a tailored story against Rajendra Singh, Ved Prakash, Suresh @ Gudda, for the alleged murder of one Janak Singh. Though none has given an eye witness account for the incident but after collecting the material from sources, this FIR came into existence on 13.06.2018 for the incident which is said to have been taken place on 05.06.2018. After lodging the FIR, the police stated investigation in the matter and has recorded the statement of Vedram, informant under Section 161 Cr.P.C.. Its question and answers, are self explanatory and thus needs no elaboration. The informant, himself has accepted that deceased has died on account of accidental electrocution at tube well and the theory of scuffle with the named accused person is unfounded and baseless.
After collecting the all other material and statements of as many as 20 witnesses formal as well as factual reached to the conclusion that the offence is under Section 304A/201 IPC. is being committed and accordingly charge sheet was submitted under the aforementioned sections of the IPC against the named accused persons. Since the offence under Section 304A/201 IPC is triable by Magistrate and the learned A.C.J.M.- XI, Agra started recording the statements of witnesses in which four witnesses, namely, PW-1 Vedram, PW-2 Jitendra Kumar, PW-3 Vinod and PW-4 Ajai Kumar were recorded.
It is worthwhile to mention here that doctor who has conducted the post mortem without mincing the word, has opined that the deceased died on account of electrocution and there was no signs of any scuffle or maar peet as an ante mortem injuries. After recording the statements of above mentioned four persons witnesses of prosecution and application under Section 323 Cr.P.C.. (Procedure when, after commencement of the inquiry or trial Magistrate finds the case should be committed ) was moved with the prayer that keeping in view the testimony recorded the facts of the case falls under Section 302 IPC and liable to be committed before the Court of Sessions for the trial.
Learned Magistrate vide its order dated 18.05.2018 passed a detailed order meeting out all the arguments and relying upon the statement of doctor who conducted the post mortem and his report as mentioned above, the doctor has categorically opined that the deceased died on account of electrocution and there was no sign of any other injury as ante mortem injury, it cannot be said that the deceased was murdered by named accused persons as per prosecution story.
More particularly, the doctor who has conducted the post mortem is yet to be examined during the trial. The learned Magistrate after making a thread bare analysis of all the witnesses has reached to the conclusion that merely relying upon the testimony of Jitendra Kumar, PW-2, the case cannot be committed to the court of Sessions. There are many more witnesses of the side of the prosecution are yet to be examined and as such the application under Section 323 Cr.P.C. was rejected by learned Magistrate on 18.05.2018.
Aggrieved by this order a revision was preferred and learned revisional court too has put his seal of approval over the judgment of learned ACJM by a well reasoned judgment dated 11.10.2018 I have an opportunity to perused the both the orders and found no illegality or infirmity in these orders. The application under Section 323 Cr.P.C. is premature and is accordingly rightly dismissed.
Hence the present 482 Cr.P.C. application is hereby rejected. There is no further orders as to costs.
Order Date :- 20.12.2018 Shailesh/Abhishek Sri.