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Allahabad High Court · body

2008 DIGILAW 2719 (ALL)

MOHD. ARIF LARI v. STATE OF U. P.

2008-12-18

RAVINDRA SINGH

body2008
JUDGMENT Hon’ble Ravindra Singh, J.—Heard Sri Arvind Srivastava, learned counsel for the applicants, learned A.G.A. for the State of U.P. and Sri Anil Kumar Tiwari, learned counsel for O.P. No. 2. 2. This application has been filed with a prayer to quash the charge-sheet of case crime No. 305 of 2007 under Section 304, I.P.C. P.S. Rampur Karkhana district Deoria pending in the Court of learned A.C.J.M., Court No. 17 Deoria. 3. The facts of the case in brief are that O.P. No. 2 Smt. Arti Devi moved an application dated 20.2.2007 under Section 156 (3) Cr. P.C., the same was allowed by the learned C.J.M. Deoria and Officer In-charge of the P.S. Rampur Karkhana was directed to register a case and investigate the same vide order 1.5.2007, in pursuance of the order dated 1.5.2007, F.I.R. of this case has been lodged as case crime No. 305 of 2007, the matter was investigated by the I.O. who recorded the statement of the witnesses including the statement of Smt. Arti Devi, Virendra Singh, Suraj Gupta and Amrati Gupta as a witness of the F.I.R., submitted charge-sheet dated 19.8.2007 in the Court of learned C.J.M. on which learned C.J.M. Deoria has taken cognizance and summoned the applicant, on 30.7.2008 being aggrieved from the charge-sheet of the above mentioned case, the applicant filed the present application under Section 482, Cr. P.C. 4. That it is contended by the learned counsel for the applicant that even according to the prosecution version the alleged occurrence has taken place on 2.7.2004, its information was given to the police station concerned by Anirudh on 3.7.2004, at 8.40 a.m. on that information an inquest report was prepared on 3.7.2004, according to the opinion of the witness of the inquest, the deceased was a drunkard who came at his house where he died, the deceased Ramayan was the husband of O.P. No. 2, there had been litigation in revenue cases between the applicant No. 1 and the deceased Ramayan, there had been an agreement to sale of a land in between the deceased and the applicant Mohd. Arif, which was executed on 7.1.2004. Arif, which was executed on 7.1.2004. The applicant No. 1 Arif filed a suit No. 821/2.4.2006 in the Court of Tehsildar Deoria for the purpose of mutation, the same was allowed on 7.4.2006, the same was challenged by O.P. No. 2, in the Court of S.D.O. Deoria but the same was dismissed in default on 30.9.2006, thereafter the applicant moved an application in the Court of S.D.O. Deoria on 17.10.2006 for the measurement of the plot and the application was moved by the applicant No. 1 in the Court of A.D.M. (F and R) Deoria for the purpose of peaceful construction on land in dispute. During the pendency of the above mentioned proceedings O.P. No. 2 had not made any allegation that her husband was murdered by the applicant, first of all, she handed over the application dated 19.2.2007 to S.P. Deoria making allegation therein that the husband has been beaten by the applicants and two unknown persons by way of using lathi, danda and tabal blows consequently, he sustained injuries and died subsequently and the post mortem of the dead body was conducted, the local police was approached who incorrectly assured that the F.I.R. has been registered because O.P. No. 2 was an uneducated lady. Thereafter she moved an application under Section 156 (3), Cr. P.C. in the Court of learned C.J.M. Deoria, the same was allowed on 1.5.2007. 5. During investigation I.O. recorded the statement of many persons who categorically stated that the deceased was drunkard consequently, he died but the wife of the deceased had lodged a false case against the applicants only because she had taken money but the same was not given by the applicant No. 1, the F.I.R. itself is delayed about three years and other circumstances also shows that O.P. No. 2 had lodged a false F.I.R. against the applicants and without doing fair investigation charge-sheet has been submitted by the I.O. on which the learned Magistrate concerned has taken cognizance and summoned the applicants to face the trial. The naming of the applicants in the F.I.R. is due to ulterior motive, which is malafide in nature, it is gross misuse of the process of law, therefore, the proceedings pending against the applicants may be quashed. 6. The naming of the applicants in the F.I.R. is due to ulterior motive, which is malafide in nature, it is gross misuse of the process of law, therefore, the proceedings pending against the applicants may be quashed. 6. In reply to the above contention, it is submitted by the learned A.G.A. and the learned counsel for O.P. No. 2 that O.P. No. 2 is an uneducated woman, there had been some litigation in between the deceased and the applicant No. 1. The applicants are very powerful and influential persons, under their influence the F.I.R. of O.P. No. 2 was not registered whereas the local police has prepared the inquest report on 3.4.2007, its post mortem report dated 3.4.2007 in which the cause of death was due to ante mortem injuries, there was fracture of the ribs, according to the post mortem examination report neither alcohol was found in the stomach nor its smell was coming out, but the local police did not proceed further to take action against the persons who had committed the murder of the deceased ultimately O.P. No. 2 moved an application under Section 156 (3), Cr. P.C., the same has been allowed and the F.I.R. has been registered after investigation, the charge-sheet on 19.8.2008 has been submitted, the I.O. recorded the statement of many persons including the witnesses of the F.I.R. namely Smt. Arti Devi, Virendra, Suraj Gupta, and Amrati Gupta, according to their statements, specific allegation has been made against the applicants of causing injuries on the person of the deceased, according to their statement, participation of the applicants in the commission of the alleged offence is prima facie established. The I.O. has not committed any error in submitting the charge-sheet, the learned C.J.M. concerned has not committed any error in taking the cognizance and summoning the applicants on the basis of charge-sheet submitted by the I.O., the present application is devoid of merits, the same may be dismissed. 7. The I.O. has not committed any error in submitting the charge-sheet, the learned C.J.M. concerned has not committed any error in taking the cognizance and summoning the applicants on the basis of charge-sheet submitted by the I.O., the present application is devoid of merits, the same may be dismissed. 7. Considering the facts, circumstances of the case and submission made by the learned counsel for the applicants and the learned A.G.A. and the learned counsel for O.P. No. 2, and from the perusal of the record, it appears that in the present case, F.I.R. has been lodged on 10.5.2007 in respect of the incident dated 2.7.2004 definitely, F.I.R. is delayed by three years, but it has been lodged in pursuance of the order passed by the learned C.J.M. Deoria by which the application under Section 156 (3), Cr. P.C. was allowed, after investigation, the I.O. has submitted the charge-sheet dated 19.8.2007 in the Court of learned C.J.M. Deoria, the I.O. has recorded the statement of the witness mentioned in the F.I.R. as Smt. Arti Devi, Virendra, Suraj Gupta and Amarti Gupta, who have supported the prosecution story, according to their statement, a prima facie offence under Section 304, I.P.C. is made out against the applicant, according to the post mortem examination report also, the deceased has sustained injuries in which ribs were fractured and the cause of death was due to ante mortem injuries, the post mortem examination report shows that no alcohol was found in the stomach of the deceased even the smell of alcohol was not coming out from the body, therefore, at this stage it cannot be presumed that the deceased had died due to taking liquor. O.P. No. 2 is a illiterate lady of the village, she has tried to explain the delay in lodging the F.I.R. but at this stage without expressing any opinion on explanation of delay in lodging the F.I.R. it is not proper to quash the charge-sheet on the ground of delay in lodging the F.I.R. at this stage it has to be considered whether on the basis of material collected by the I.O. prima facie offence is made out or not but the same is made out on the basis of the material collected by the I.O. There is no illegality in the submission of the charge-sheet or in taking cognizance by the learned C.J.M., therefore, the prayer for quashing the charge-sheet of the above mentioned case is refused. 8. However, considering the facts and circumstances of the case, it is directed that the applicants shall appear before the Court concerned within 25 days from today, till then N.B.W. issued against them shall be kept in abeyance. 9. In case, they apply for bail, the same shall be heard and disposed of expeditiously by the Court below. 10. With the above direction, this application is finally disposed of. ————