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2023 DIGILAW 1892 (ALL)

Munesh v. State of U. P.

2023-08-07

RAM MANOHAR NARAYAN MISHRA

body2023
JUDGMENT : RAM MANOHAR NARAYAN MISHRA, J. 1. Heard learned counsel for the revisionist, learned counsel for the private respondent and learned A.G.A. for the State and perused the record. 2. Instant criminal revision has been preferred against judgment and order dated 24.3.2023 passed by Special Judge, DAA (Dacoity Affected Area)/Additional District and Sessions Judge, Hamirpur, whereby application 14Kha moved by accused under Section 216 Cr.P.C. for alteration of charge has been dismissed. This case has arisen out of Case Crime No. 87 of 2022, under Section 302/34, 201 IPC, P.S. Kurara, District Hamirpur. 3. From perusal of record it appears that F.I.R. in present case was lodged by respondent no. 2 on 1.4.2022 under Section 364 IPC with averment that his brother Pradeep @ Jwaladeen went missing on 29.3.2022 since 8:00 pm. He was in constant contact with accused Munesh and Chhuttan who were having intimacy with his missing brother. He suspects that Munesh and Chhuttan would be aware of the whereabouts of his missing brother. 4. Police started investigation in the case and recorded statements of the informant Kamta Prasad. Dead body of the missing person was recovered on 2.4.2022 and the information in this regard was entered in G.D. of P.S. concerned on 2.4.2022 at 9:20 hours. Inquest on dead body of the deceased was carried out. Dead body was found on the bank of Yamuna river, near Mauli canal pump, which was in advanced stage of decomposition. Post-mortem of the dead body was conducted by the Dr. Umakant, who opined that time of death was three days prior to post-mortem. Cause of death was asphyxia as a result of ante-mortem drowning. Investigating Officer recorded statements of Ahilya Devi, mother of deceased and Kuldeep, brother of the deceased and Suryapal and on the basis of statement of witnesses, post-mortem report of the deceased and C.D.R. of deceased and accused persons, concluded that deceased was used to converse with neighbour Roshni Yadav, daughter of Chunna Yadav, till the date when he went missing. Shailendra who is brother of Roshni, was very much enraged to this and he went for search of Pradeep (deceased) to his place along with accused Munesh, Chhote and Rakesh and stated to his family members that Pradeep will have to face dire consequences. Deceased got scared about threats given by accused persons. Shailendra who is brother of Roshni, was very much enraged to this and he went for search of Pradeep (deceased) to his place along with accused Munesh, Chhote and Rakesh and stated to his family members that Pradeep will have to face dire consequences. Deceased got scared about threats given by accused persons. He converted the offence under Section 306 IPC and ultimately chargesheet was filed against revisionist accused persons under Section 306 IPC on the basis of statements of witnesses recorded under Sections 161 Cr.P.C. and the C.D.R. However, at the stage of commencement of trial, learned trial court after hearing submissions of D.G.C. (Criminal) on behalf of State and learned counsel for the accused, found this case under Section 302/34 and 201 IPC and framed charges against accused persons for offence under Section 302/34 and 201 IPC. Accused persons are said to have been enlarged on bail for enhanced penal sections for which they were charged by the trial court. Accused filed a petition before this Court under Section 482 Cr.P.C. against framing of charge against them under Sections 302/34 and 201 IPC which was later on converted into Crl. Revision No. 4428 of 2022. The said criminal revision was disposed of by this Court by order dated 22.12.2022 with observation that applicant has remedy to move an application under Section 216 Cr.P.C. for alteration of charge. Consequent upon said observations of this Court, accused persons moved an application under Section 216 Cr.P.C. before trial court on 23.1.2023 and said application was dismissed by trial court by impugned order. 5. Learned counsel for the revisionist submitted that learned trial court framed charges against accused under Sections 302/34 IPC and 201 IPC without sufficient material, whereas charge-sheet was filed for charge under Sections 306 IPC only by the investigating officer. He next submitted that during investigation no such material could be collected against accused persons to connect them for said charges. 6. Learned trial court has rejected the application for alteration of charge without cogent and plausible reasons, therefore, impugned order is bad in the eye of law and not sustainable. Learned trial court failed to consider this fact that accused persons were falsely implicated in the case only on account of village partibandi. 6. Learned trial court has rejected the application for alteration of charge without cogent and plausible reasons, therefore, impugned order is bad in the eye of law and not sustainable. Learned trial court failed to consider this fact that accused persons were falsely implicated in the case only on account of village partibandi. Although, accused persons were chargesheeted under Section 306 IPC by the investigating officer, yet there is no material which could suggest even the charge of abatement to commit suicide on the part of accused persons. Application under Section 216 Cr.P.C. was moved by revisionist on directions of this Hon'ble Court. 7. Per contra, learned A.G.A. and learned counsel for the respondent no. 2 submitted that there was no occasion for the deceased to commit suicide. Accused caused his death by forcibly make him drowned in the river. They have left the dead body on the bank of river Yamuna near Mauli canal pump. There is no illegality in impugned order passed by court below. Accused persons are facing trial for those charges and they have been enlarged on bail in enhanced charges and once the charge has been framed, the case should be disposed of on merits on the basis of evidence adduced during trial. In inquest report, police has found a rope around his neck. 8. Smt. Ahilya Devi, mother of the deceased, in her statement recorded under Section 161 Cr.P.C. has stated that on 29.3.2022 at around 3:30 hours, her son Pradeep had gone to the agricultural field along with Poonam to work therein. Her neighbour Shailendra, his cousin Rakesh, friend Munesh and Kalka Yadav came to her house and Shailendra asked about Pradeep @ Jwala and stated that he speaks too much with his sister Roshni and he has caught Roshni speaking on telephone with Pradeep @ Jwala. He will not tolerate this. He will ask this to Jwala @ Pradeep and if he did not mend his ways, he would set him right and will not permit to live. He will also lodge a report on behalf of his sister against him regarding teasing her. Her son Pradeep @ Jwala came back to home after Sunset and went after some time in search of his goat. He will also lodge a report on behalf of his sister against him regarding teasing her. Her son Pradeep @ Jwala came back to home after Sunset and went after some time in search of his goat. Munesh telephoned him and came to know that goat was traced and her younger son brought the goat back to home but her son Jwala @ Pradeep did not come back and his dead body was found on next day on 2nd of April at the bank of Yamuna river. Her son committed suicide by drowning in the river being hurt and afraid of threatening given by Shailendra and other accused persons. Similar statement was given by Kuldeep, younger brother of the deceased and Suryapal. 9. Chargesheet in the case was filed under Section 306 IPC but learned trial court has framed charge against the accused under Section 302/34 and 201 IPC by order dated 7.7.2022 wherein learned trial court has stated that D.G.C. (Criminal) has submitted that in statement of mother of the deceased as well as witness Suryapal, this fact has emerged that accused persons had threatened the deceased with life on the date of incident and the circumstances suggest that accused persons acting conjointly drowned the deceased to death and thus, committed his murder and dead body was thrown in a canal pump in Yamuna river. 10. The criminal revision filed by the revisionist against framing of charge under Section 302/34 and 201 IPC has been dismissed by this Court giving liberty to the revisionist to move an application for alteration of charge under Section 216 Cr.P.C. 11. Hon'ble Apex Court in Nallapareddy Sridhar Reddy vs. State of Andhra Pradesh and Others, AIR 2020 SC 75, has observed in paragraph no. 20 as follows: “20. From the above line of precedents, it is clear that Section 216 provides the court an exclusive and wide-ranging power to change or alter any charge. The use of the words “at any time before judgment is pronounced” in Sub-Section (1) empowers the court to exercise its powers of altering or adding charges even after the completion of evidence, arguments and reserving of the judgment. The use of the words “at any time before judgment is pronounced” in Sub-Section (1) empowers the court to exercise its powers of altering or adding charges even after the completion of evidence, arguments and reserving of the judgment. The alteration or addition of a charge may be done if in the opinion of the court there was an omission in the framing of charge or if upon prima facie examination of the material brought on record, it leads the court to form a presumptive opinion as to the existence of the factual ingredients constituting the alleged offence. The test to be adopted by the court while deciding upon an addition or alteration of a charge is that the material brought on record needs to have a direct link or nexus with the ingredients of the alleged offence. Addition of a charge merely commences the trial for the additional charges, whereupon, based on the evidence, it is to be determined whether the accused may be convicted for the additional charges. The court must exercise its powers under Section 216 judiciously and ensure that no prejudice is caused to the accused and that he is allowed to have a fair trial. The only constraint on the court’s power is the prejudice likely to be caused to the accused by the addition or alteration of charges. Sub-Section (4) accordingly prescribes the approach to be adopted by the courts where prejudice may be caused.” 12. Learned counsel for the revisionist placed reliance on a judgment of Hon'ble Apex Court in Ashish Kumar and Another vs. State of U.P. and Another, 2015 (0) Supreme (All) 580, wherein this Court while deciding the Crl. Misc. Application u/s 482 Cr.P.C. has observed in paragraph no. 13 as under: “13. But the instant matter arises out of a case which is based on a police report as a first information report had been lodged before the police at Deesa Police Station under Section 154 Cr.P.C. and, therefore, the investigation was conducted by the police authorities in terms of procedure prescribed under Chapter XII Cr.P.C. and thereafter charge-sheet was submitted. But the instant matter arises out of a case which is based on a police report as a first information report had been lodged before the police at Deesa Police Station under Section 154 Cr.P.C. and, therefore, the investigation was conducted by the police authorities in terms of procedure prescribed under Chapter XII Cr.P.C. and thereafter charge-sheet was submitted. At this stage, the Chief Judicial Magistrate after submission of the charge-sheet appears to have entertained an application of the complainant for addition of three other sections into the charge-sheet, completely missing that if it were a complaint case lodged by the complainant before the Magistrate under Section 190(1)(a) Cr.P.C. obviously the Magistrate had full authority and jurisdiction to conduct enquiry into the matter and if at any stage of the enquiry, the Magistrate thought it appropriate that other additional sections also were fit to be included, the Magistrate obviously would not be precluded from adding them after which the process of cognizance would be taken by the Magistrate and then the matter would be committed for trial before the appropriate court.” 13. This Court in Vibhuti Narayan Chaubey alias vs. State of U.P. 2003 Cri. L.J. 196, while dismissing a petition against order passed on application under Section 216 Cr.P.C. by the accused persons to alter the charge under Section 307/34 IPC to Section 324/34 IPC observed that once the charge is framed the case will result, either in acquittal or in conviction in accordance with the provisions of trials prescribed under Chapter 18, 19 and 20 of the Cr.P.C. The charge can be withdrawn under Section 224 of Cr.P.C. only after judgment and it cannot be deleted. The word “alter” has not been used in Section 216 Cr.P.C. and therefore, charge once framed cannot be deleted. Section 216 Cr.P.C. does not provide for deletion of charge. The word “delete” has intentionally been not used by the legislature. 14. In the light of foregoing discussion and judicial authorities cited above, I find no legal justification to interfere in the impugned order passed by learned court below, whereby application under Section 216 Cr.P.C. moved by revisionist for deletion of charge under Section 302/34 and 201 IPC has been dismissed. 15. Revision stands dismissed with above observations.