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2023 DIGILAW 904 (ALL)

Shankar v. State of U. P.

2023-04-04

SHEKHAR KUMAR YADAV

body2023
JUDGMENT Shekhar Kumar Yadav, J. Heard Mr. P.K. Singh, learned counsel for the applicants, learned A.G.A. for the State and perused the material available on record. 2. This application under Section 482 Cr.P.C. has been filed by applicants to quash the order dated 24.08.2017 passed by Additional District and Sessions Judge, Court No.5, Kanpur Dehat in S.T. No.434 of 2011, under Section 302 IPC, Police Station Ghatampur, District Kanpur Nagar. 3. In short, the prosecution story is that the impugned FIR has been lodged by the mother of the deceased on 10.05.2011 at about 08.40 pm alleging that upon information, she alongwith one Kallu Senger and another villagers reached at the place of incident wherein the dead body of her son was lying in the field of Wheat near the Tubewell of one Mahendra Pratap Singh and on his body, the mark of injury was found. She further alleged that she was confident that applicants and their father have committed murder of her son. 4. Submission of learned counsel for the applicants is that the applicants are innocent and have been falsely implicated in the present case due to enmity. The applicants have never committed any offence as alleged in the impugned FIR. The applicant no.1 is a constable/sepoy in military posted in Jammu & Kashmir Sambha Sector whereas the applicant no.2 was in a private job at Bombay at the time of alleged incident. Further submission is that as per autopsy report, the cause of death is hemorrhage and shock due to anti mortem injury. The recovery of Axe, which has been shown from the place of incident, is false and fabricated. Further submission is that during investigation the investigating officer has not found material against the applicant, therefore, submitted charge sheet against Bachcha Singh, Kallu Singh, Sanjay Singh and Mahendra Singh Sachan. After submission of charge sheet, the case was committed in the court of Sessions. Meanwhile, the informant has moved an application for summoning the accused applicants and on the basis of statement of informant as well as witnesses, the applicants have been summoned under Section 319 Cr.P.C. Further submission is that the case in hand is of circumstantial evidence and nothing incriminating has been recovered on the pointing out of accused applicants and even there is no confessional statement of any accused who have been charged sheeted. Further submission is that there is no evidence of last seen of the applicants with the deceased at any point of time. The autopsy report and the statements of doctor are also not supporting the prosecution case, therefore, the summoning of accused at the fag end of trial, is wholly abuse of process and is not sustainable in the eye of law, hence, the same is liable to be set aside. 5. Learned AGA has vehemently opposed the contention raised by learned counsel for the applicants and has submitted that it is a case of murder of son of the informant. The deceased was just aged about 23 years at the time of alleged incident. All above contentions raised by learned counsel for the applicants are to be examined when full opportunity is given to the prosecution, who have lost his son, to prove its case at the time of trial. There is no illegality or infirmity in the order impugned, which may call for interference by this Court. 6. From the perusal of material on record and looking into the facts of the case at this stage it cannot be said that no offence is made out against the applicants. All the submissions made at the bar relates to the disputed question of fact, which cannot be adjudicated upon by this Court under Section 482 Cr.P.C. At this stage only prima facie case is to be seen in the light of the law laid down by Supreme Court in cases of M/s Neeharika Infrastructure Pvt. Ltd. v. State of Maharashtra, AIR 2021 SC 1918 , R.P. Kapur v. State of Punjab, A.I.R. 1960 S.C. 866, State of Haryana v. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar v. P.P.Sharma, 1992 SCC (Cr.) 192 and lastly Zandu Pharmaceutical Works Ltd. v. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.) 283. 7. Accordingly, the present application under Section 482 Cr.P.C. is devoid of merit and it is, accordingly, dismissed.