Allahabad High Court
Ramkishor @ Kishor And Another vs State Of U.P. Thru. Prin. Secy. ... on 3 January, 2023
Bench: Subhash Vidyarthi
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 15
Case :- APPLICATION U/S 482 No. - 9777 of 2022
Applicant :- Ramkishor @ Kishor And Another
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home, Lko. And Another
Counsel for Applicant :- Abhishek Srivastava,Mohd. Mubeen
Counsel for Opposite Party :- G.A.
Hon'ble Subhash Vidyarthi,J.
Head Sri Abhishek Srivastava, learned counsel for the applicants and Sri Hari Shankar Bajpai, learned AGA-I for the State.
The instant application has been filed seeking quashing of the order dated 21.10.2022 passed by the learned Special Judge, Hardoi in Session Case No. 1221/2022 titled State of U.P. v. Sandeep & Ors., whereby charges under Sections 498-A, 304B IPC and alternative Section 302/34 IPC as also Section 3/4 of the Dowry Prohibition Act have been framed against the applicants.
The submission of learned counsel for the applicants is that alternative charge under Section 302/34 IPC has been framed in a mechanical manner without adverting to the evidence collected during the investigation and there is no material to support the charge.
Sri Abhishek Srivastava has relied upon a decision of the Hon?ble Supreme Court in the case of Jasvinder Saini & Ors v. State (Govt. of NCT of Delhi), (2013) 7 SCC 256, wherein the Hon?ble Supreme Court has considered and explained its earlier judgment in Rajbir @ Raju & Anr. v. State of Haryana, (2010) 15 SCC 116 as ?this Court meant to say was that in a case where a charge alleging dowry death is framed, a charge under Section 302 can also be framed if the evidence otherwise permits.?. The Hon?ble Supreme Court further held that ?If there is evidence whether direct or circumstantial to prima facie support a charge under Section 302 IPC the trial Court can and indeed ought to frame a charge of murder punishable under Section 302 IPC, which would then be the main charge and not an alternative charge as is erroneously assumed in some quarters.?
A copy of the post mortem examination report of the deceased annexed with the affidavit indicates an oblique ligature mark present on all around the neck of the body of the deceased and relying upon the aforesaid report Sri Abhishek Srivastava has vehemently submitted that since the deceased had suffered a solitary injury on her body, it indicates that she has committed suicide as in case of murder, it was not probable that any other injury would not suffered by the deceased.
Per contra, learned AGA-I has opposed the prayer for quashing of the charge sheet and he has submitted that whether or not the hanging of the deceased was caused by herself or by some other person, is a matter to be decided by the trial court after examining of evidences and at this stage it cannot be said that absence of any other mark of injury consequently establishes that the deceased has not been murdered.
I have given a thoughtful consideration of the aforesaid facts and circumstances of the case and rival submissions made by the learned counsel for the parties.
What, prima facie, appears from the post mortem examination report of the body of the deceased is that she had died because of ante mortem asphyxia and there was an oblique ligature mark all around her neck. Whether or not the ligature mark was caused due to hanging of the deceased herself and whether or not she had been hanged by some other person, can not be decided by this Court at this stage and these issues can only be decided by the trial court after examining the evidences that would be lead in the case.
Without making any further observation, which may effect the trial of the case, I am of the view that the present case does not warrant exercise of jurisdiction under Section 482 Cr.P.C. for quashing of the charge under Section 302/34 IPC.
The petition lacks merit and is, accordingly, dismissed.
Order Date :- 3.1.2023
Pradeep/-
