Allahabad High Court
Abhinav Mishra vs State Of U.P. And Another on 25 August, 2023
Bench: Sadhna Rani (Thakur)
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:171684
Court No. - 84
Case :- CRIMINAL APPEAL No. - 2142 of 2023
Appellant :- Abhinav Mishra
Respondent :- State of U.P. and Another
Counsel for Appellant :- K.K.Rao,Pradeep Kumar Srinette
Counsel for Respondent :- G.A.,Arvind Kumar,Naveen Kumar Kanojia
Hon'ble Mrs. Sadhna Rani (Thakur),J.
Heard learned counsel for the appellant, Sri Arvind Kumar, learned counsel appearing for the opp. party no. 2, Sri Vibhav Anand Singh, learned A.G.A. for the State and perused the record.
This appeal has been preferred against the order dated 22.12.2022 passed by Additional Sessions Judge/ Special Judge SC/ST Act, Gorakhpur in Special Trial No. 1712 of 2021 arising out of case crime no. 291 of 2021, under sections 302, 307, 120-B, 506 I.P.C. and 3(2)(5) of SC/ST Act, police station Gola District Gorakhpur. By the impugned order, the discharge application moved on behalf of the appellant Abhinav Mishra was rejected by learned Special Judge SC/ST Act, Gorakhpur.
It is argued by the learned counsel for the appellant that the incident is dated 24.7.2021 and the FIR regarding the incident was lodged on 25.7.2021. On the date of incident the present appellant was present in his office and it is admitted fact that he was arrested from his office on 28.7.2021, so the plea of alibi is also taken by the appellant. There is no evidence against the appellant regarding the involvement in the murder of the deceased or inflicting injuries or hatching any conspiracy in the incident. The appellant has been falsely implicated in the present case being the brother of the wife of the deceased. There is no call detail report (CDR) of the appellant and deceased. The four persons are said to have committed the offence who were named in the FIR. Apart from those four persons 13 more persons are named in the FIR. Chargesheet has also been filed against all of them. While from the evidence on record, the offence of hatching conspiracy regarding the murder of the deceased or inflicting injuries under section 307 I.P.C. cannot be said to be made out against the appellant.
The prayer is opposed by learned counsel for the opp. party no. 2 and it is submitted that the whole dispute is of marrying the deceased with the sister of the present appellant. As the deceased belonged to scheduled caste community, so the family members of the wife of the deceased were not happy with their marriage. There is clear allegation that all the family members of the wife of the deceased including the present appellant used to pressurize the wife of the deceased not to solemnize marriage with the deceased as it would bring bad name to their family in the society. The wife of the deceased was also compelled to file a false case of cheating and rape against the deceased. It is submitted that the plea of alibi taken by the appellant can only be decided at the time of evidence. There is clear statement of the wife of the deceased that it was the present appellant also who used to pressurize her sister as he was not happy with the marriage solemnized by his sister with the deceased. It is further submitted that at the stage of charge, the court has to see only prima facie offence against the appellant. Again the attention of the court is drawn towards the judgment mentioned in the order impugned Palvinder Singh Vs. Balvinder Singh and others, 2009 (1) JIC 73 SC that if there is strong suspicion against the appellant even then the charge can be framed against him. It is also argued that the charge was framed on 11.4.2023 and no prayer has been made for alteration of charge in the present appeal filed against the order on the discharge application.
From the perusal of the FIR, it is clear that it is a case of honour killing as the deceased is said to have married with the sister of the present appellant and admittedly the deceased being a member of scheduled caste, the family members of the wife of the deceased were not happy with this relationship/ marriage. The statement of the wife of the deceased is appended with the paper book wherein she has clearly stated that her father, the family members and her other relatives including the present appellant used to pressurize her not to solemnize marriage with the deceased because the deceased being Dhobi by caste (scheduled caste). The marriage with the deceased being scheduled caste would bring bad name of the family in the society. It is true that apart from this allegation of pressurizing the wife of the deceased not to marry with the deceased, there is no specific role of the appellant mentioned either in the FIR or in the statement of the wife of the deceased but at the same time it is also true that this case is of honour killing wherein the specific allegation of making pressure of not to marry with the deceased is shown against the present appellant also. There is no direct allegation against the present appellant for the offence under sections 302, 307 and 506 I.P.C. and admittedly at the place of incident the presence of the appellant is not disclosed in the FIR. During investigation, this fact has also not been brought by the Investigating Officer that the present appellant was directly involved in the commission of the murder or inflicting injuries to the injured. The chargesheet against the appellant is under sections 302, 120-B, 307, 506 I.P.C. and section 3(2)5 of SC/ST Act which means that the allegation against the present appellant is of a criminal conspiracy of the murder of the deceased and inflicting injuries to the deceased and his uncle.
As per the judgment placed before the court State of Orisa Vs. Debendra Nath Padhi, 2004 (8) SCC 568, the plea of alibi cannot be relied upon to discharge the accused, otherwise also because there is no direct charge of section 302 and 307 I.P.C. against the appellant, so even if he was present in his office on the date of the incident even then at the stage of charge he cannot be discharged from the charge of hatching conspiracy of the offence. There are catena of judgments of the apex court wherein it has been laid down that charge can be framed on the basis of strong suspicion also.
In the opinion of the court, the present appellant is the brother of the wife of the deceased against whom there is allegation in the statement of his sister, the wife of the deceased that he also used to pressurize his sister not to solemnize marriage with the deceased. The court is of the opinion that it is a case of honour killing and on the basis of strong suspicion, the appellant cannot be absolved of the liability of the charge being framed against him under the above sections. The appeal being devoid of merits is liable to be dismissed.
It is accordingly dismissed.
Order Date :- 25.8.2023
Gss
