Mahesh Babu Sharma And 5 Others vs State Of U.P. And Another
2023 Latest Caselaw 27953 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:197582
 
Court No. - 84
 

 
Case :- CRIMINAL APPEAL No. - 7621 of 2023
 

 
Appellant :- Mahesh Babu Sharma And 5 Others
 
Respondent :- State of U.P. and Another
 
Counsel for Appellant :- Rajiv Lochan Shukla,Radhey Shyam Yadav,Siddharth Shukla
 
Counsel for Respondent :- G.A.
 
AND
 
Case :- CRIMINAL APPEAL No. - 7984 of 2023
 

 
Appellant :- Ram Prakash @ Ram Prakash Singh Yadav
 
Respondent :- State Of U.P. Through Its Secretary (Home) At Lkw
 
Counsel for Appellant :- Shailesh Singh Yadav,Varun Kumar Srivastava
 
Counsel for Respondent :- G.A.
 
Hon'ble Mrs. Sadhna Rani (Thakur),J.

Heard learned counsel for the appellants, learned A.G.A. and perused the record.

No one has put in appearance for the opposite party no. 2 in both the appeal despite of sufficient service.

By the impugned order dated 03.07.2023 the trial court allowed the application Paper No. 83Kha moved by the first informant under Section 216 Cr.P.C.

Against this order dated 03.07.2023 the appellants Mahesh Babu Sharma, Chauki Incharge, Constable Jitendra Singh, Constable Govind Singh and private persons Mohd. Arif, Jahoor Bux and Sher Bahadur preferred Criminal Appeal No. 7621 of 2023 and accused Constable Ram Prakash @ Ram Prakash Yadav preferred separate appeal being Criminal Appeal No. 7984 of 2023.

As both the appeals arise out of the same order dated 31.07.2023 regarding alteration of charges against the appellants, hence, both the appeals are being decided by the same and the common order.

By the impugned order the charges already framed on 04.09.2017 against Mahesh Babu Sharma, Ram Prakash, Jitendra Singh and Govind Singh under Sections 343, 323/34, 504, 506, 306/120B IPC and Section 3(2)5 SC/ST Act were altered as charges under Sections 343/34, 323/34, 504, 506, 302/34 and 102B IPC and Section 3(2)5 SC/ST Act. The charges against Mohd. Arif, Jahoor Bux and Sher Bahadur under Sections 306/120B, 504, 506 IPC and Section 3(2)5 of SC/ST Act were altered as charges under Sections 302/120B, 504, 506 IPC and 3(2)5 of SC/ST Act.

As per facts of the case, an FIR was lodged by the first informant, Paramveer on 15.08.2010 at 22.05 PM against Mahesh Chandra Sharma, Chauki Incharge Karor, three Constables, Chauki Karor (names and addresses unknown) and three private persons, Jahoor Bux, Mohd. Arif and Sher Bahadur under Sections 308, 323, 504, 506, 343, 120B IPC, 3(2)5 SC/ST Act and 7/13 Prevention of Corruption Act with the allegations that Rampal, brother of first informant Paramveer, had eloped with the daughter of Mohd. Ikhlaq and he was apprehended by the police on 13.08.2010. Veerpal and Jai Prakash, brothers of the first informant and Ayodhya Prasad, father of the first informant were also made to sit at the Police Chauki by the police conerned. On 14.08.2010 Chauki Incharge Mahesh Babu Sharma demanded Rs. 25,000/- from the father of the first informant in lieu of releasing the brothers of the first informant/sons of Ayodhya Prasad. On 15.08.2010 when Ayodhya Prasad reached at Chauki with Rs. 20,000/- and gave this amount to the Chauki Incharge alleging that he could arrange only that much of amount, Chauki Incharge Mahesh Babu Sharma hurled wild abuses, caste based words and warned that he would not let his son live alive as he had eloped with a minor girl and the father Ayodhya Prasad was not paying the full amount also. At the same time Jahoor Bux, Mohd. Arif and Sher Bahadur, the family members of the alleged victim girl also reached at the Chauki. The police personnel had already thrashed Rampal, the brother of the first informant badly. The above family members of the girl exhorted the Chauki Incharge that he was treating Rampal as a guest. He did not even beat him well. At this the Chauki Incharge started thrashing Rampal rigorously after closing the door and uttered that as Rampal had eloped with a muslim girl he would be beaten to death, he had no right to live. Rampal was badly thrashed at the hands of Mahesh Babu Sharma and three police Constables (name unknown). He reached at the dying stage. At the same time the neck of Rampal was strangled with a rope and he was thrown in the verandah. Soon the mother of Rampal reached there and started crying. The Chauki Incharge kicked her and hurled caste based words. When they found that Rampal was about to die, the police personnel took him to Sharda Hospital where Rampal was fighting the battle of life. The first informant, his brothers and mother all belong to SC/ST community while the Chauki Incharge and the Constables belong to general category. Hence, prayer was made to take proper action.

It is noteworthy that on the same date i.e. 15.08.2010 four cases were registered with regard to this incident; Case Crime No. 1154 of 2010 was registered under Sections 363, 366, 376 IPC at 3.10 P.M. against Rampal, Case Crime No. 1155 of 2010 was lodged at 5.15 P.M. under Section 309 IPC against Rampal, Case No. 1544 of 2010 was registered by the SHO against ten persons under Sections 147, 149, 341, 353, 504 IPC and the present case was registered at Case Crime No. NIL of 2010 at 10.05 P.M. at the different police station 'Sungarhi' under Sections 308, 323, 504, 506, 343, 120B IPC and 3(2)5 SC/ST Act and 7/3 Anti Corruption Act. This case registered at NIL of 2010 crime number against Mahesh Babu Sharma, Chauki Incharge and three unknown police personnel Chauki Karor and three private persons, Jahoor Bux, Mohd. Arif and Sher Bahadur was later on registered at Case Crime No. 1155A of 2010. After investigation in the matter three charge sheet Nos. 03 of 2011, 03A of 2011 and 03B of 2012 were filed under same Sections 306, 343, 504, 506, 120B IPC and 3(2)5 SC/ST Act against Jahur Bux, Mohd. Arif, Sher Bahadur, Mahesh Babu Sharma, Chauki Incharge, Constable Ram Prakash, Constable Jitendra Singh and Constable Govind Singh. One PIL No. 55284 of 2011 was also filed by the Peoples Union for Civil Liberty against the State, which was later on dismissed in default by this court. Admittedly, the minor girl, who was said to have eloped with the deceased, is in the custody of her parents.

On the basis of these charge sheets the trial court framed charges under Sections 343, 323/34, 306/120B, 504, 506 IPC and 3(2)5 SC/ST Act against Mahesh Babu Sharma, Ram Prakash, Jitendra Singh and Govind Singh. The charges under Sections 306/120B, 504, 506 IPC and 3(2)5 of SC/ST Act were framed against Jahoor Bux, Mohd. Arif and Sher Bahadur.

After the statement of PW-1 Paramveer-first informant, statement of PW-2 - Ayodhya Prasad, father of the deceased and during the evidence of PW-3 Veerpal, brother of the deceased Rampal, an application paper no. 83 kha under Section 216 Cr.P.C. was moved by Veerpal through his private counsel on 14.08.2019 in the trial court. This application could be decided only on 03.07.2023 and during this period the trial court recorded the statements up to PW-11.

In both these appeals filed against the order dated 03.07.2023 the main argument raised is that in the order unwanted facts foreign to the case have been mentioned. There is no judicial application of mind in the order rather the order shows the emotional application of mind of the officer. It has not been passed on facts or law. It is a biased order, as is clear from the language of the order. The officer did not take into consideration the correct and relevant facts. The grounds, which were earlier considered in the first application moved under Section 216 Cr.P.C., were reconsidered while on those same grounds when one application under Section 216 Cr.P.C. was rejected, the second application could not be entertained.

As per facts of the case this is the second application moved under Section 216 Cr.P.C.. The first application was rejected on 13.10.2017 as being premature with the finding that if any further material comes before the court then the matter of alteration of charge would be considered.The order passed on the first application under Section 216 Cr.P.c. has not been placed and argued before the court so the question of the maintainability of this second application under Section 216 Cr.P.C. cannot be looked into.

It is argued that the application under Section 216 Cr.P.C. has not been moved through appropriate medium. This application was moved by the private counsel of the first informant, which was not submitted by the Government Counsel. It is further argued that as four appellants are from U.P. Police so the prosecution sanction was must as per Section 216(5) Cr.P.C. The sanction, which was granted for prosecution under Section 306 IPC, could not be considered as a sanction for the offence under Section 302 IPC.

The main argument raised by the learned counsel for the appellants is that the offence under Section 302 IPC cannot be said to be made out on the basis of evidence on record.

It is argued on behalf of appellant Ram Prakash that he was not present on the spot at the time of the incident he had taken the alleged victim girl to the hospital for medical examination. He was neither named in the FIR nor he was chargesheeted only after the investigation by CBCID, charge sheet was filed against him. There is no evidence against him. Admittedly, no G.D. entry regarding ravangi of Ram Prakash for hospital is found on record. In the FIR and in the statement of witnesses both under Section 161 Cr.P.c. and in the court there is general allegation regarding all the three police constables including the present appellant. Thus, the allegations against all the police personnel shall be considered altogether.

It is submitted by the learned counsel for the appellants that as the deceased had eloped with the minor girl of the different community so it was a clash between two communities and not between two family members or two persons. As two different communities were involved in the matter, there was enough pressure on the police, so fair investigation by the police could not be expected.

Learned A.G.A. opposed the prayer and submitted that the order of the trial court is a well discussed and well founded order which needs no interference.

So far as the first argument of the learned counsel for the appellants against the charge under Section 302 IPC is concerned, it is claimed that there no material on record in this regard. Admittedly, the incident took place on 15.08.2010 and the injured is said to have died after 39 days of the incident on 24.09.2010. Further the attention of the court is drawn towards the post mortem report wherein six injuries are shown on the person of the deceased. These injuries are as under:-

1. A pressure sore 07 cm x 06 cm.on the back of head on ocipital region.

2. A pressure sore 12 cm. x 08 cm. on the back.

3. A pressure sore 06 cm. x 05 cm. over left thigh.

4. A partially healed abrasion 09 x 07 cm. over lateral left wall of chest.

5. A central venicalive 0.5 cm x 22.3 cm. over front of right shoulder.

6. A trache stome 02 cmx0.2 cm. over front of lower part of neck.

The cause of death was coma due to brain infarcts.

It is argued that the injuries mentioned in the post mortem report can not be said to be inflicted by the accused persons as three injuries are the pressure sores, which could develop due to lying on the bed continuously for a long time in the hospital. Injury no. 4 is a partially healed abrasion. This abrasion could not be said to be inflicted on 15.08.2010 as no abrasion would take 39 days of time to partially heal up. So far as injury nos. 5 and 6 are concerned, these are injuries which are caused by the doctor during the course of treatment given to the patient. The cause of death is found to be brain stroke caused as a result of disrupted blood supply to the brain of the deceased. This cause of death cannot be attributed to the appellants.

Though, there is also an allegation that the deceased was strangled by the police personnel by a drawstring, but in the post mortem neither ligature mark is found on the neck of the deceased nor the cause of death is shown as strangulation or asphyxia due to ante mortem hanging or strangulation. It is further submitted that as per the injury report of Rampal prepared in Sri Ram Murti Smarak Hospital, Bareilly on 16.08.2010 none of the injuries mentioned in the post mortem report were found on the person of the deceased only the ligature mark on the neck of the deceased was found there. Further it is argued that as per statement under Section 161 Cr.P.C. of the Dr. S.K. Mishra, ligature mark on an alive person vanishes within 12-15 days of the incident. As the death of the injured occurred after 39 days of the incident, so the ligature mark was not found by the doctor at the time of his post mortem. It is also submitted that neither it was possible nor it was the allegation that any injury to the deceased was inflicted by the appellants in the hospital which caused his death. Thus, it is argued that the charge under Section 302 IPC cannot be constituted on the basis of the facts of the case. It is also claimed that there was no motive before the police officials to commit the murder of the deceased.

So far as the allegation that the accused Mahesh Babu Sharma demanded Rs. 25,000/- from the father of the deceased and as that amount was not paid so Rampal was put to death by the police personnel is concerned, no charge is framed by the court under Anti Corruption Act against Mahesh Babu Sharma or any police personnel. Otherwise also, if the charge under sections of Anti Corruption act would have been framed, the jurisdiction of the Special Judge, SC/ST Act would have been ousted.

Learned A.G.A. however opposed the prayer and stated that as the deceased was thrashed with the belt, the injury caused by the buckle of belt later on developed as sores, shown in the post mortem report. With regard to the sanction also, it is claimed that as in the sanction order the facts of the case have been mentioned so a fresh sanction for newly proposed charges under Sections 302, 302/34 IPC was not needed.

If we go through the pleadings and evidence on record, it is clear that the deceased was admitted in the hospital in injured condition by the appellant Mahesh Babu Sharma with the information that the deceased made an attempt to suicide by strangling with drawstring. Admittedly, the deceased remained admitted in the hospital in the injured condition for about 38 days and on 39th day he is said to have been expired in District Hospital, Pilibhit. The cause of death in the post mortem report is shown to be coma due to brain infarcts and this coma due to brain infarcts cannot be attributed either to the visible injuries found on the person of the deceased or as a result of strangulation as alleged by the prosecution.

So far as the arguments of learned A.G.A. are concerned that the deceased was thrashed by the belt by the police personnel and the injuries of the pointed part of the buckle of the belt, later on developed into sores, it does not appeal as there is no allegation that the deceased was thrashed by the appellants with the help of belt. Further it has come in the statements of the witnesses that Rampal was badly thrashed at the hands of the police personnel, as a result he reached at the dying stage. As there is allegation of thrashing at the hands of the police at the most the charge under Section 304(2) IPC can be said to be made out against the appellants-police personnel.

As admittedly in the incident seven persons were involved so in the opinion of the court, in place of Section 34, Section 149 of IPC would apply. The role assigned to three private persons; Mohd. Arif, Jahoor Bux and Sher Bahadur is of exhortation that they exhorted the police personnel to beat the deceased well and as a consequence the police personnel are said to have thrashed the deceased badly.

The cause of death of the deceased shown in the post mortem report as coma due to brain infracts could be the result of thrashing the deceased 39 days back by the police personnel or not is yet to be decided by the court on the basis of the statements of the doctors and the evidence on record. The role of exhortation to beat the deceased well is attributed to three private persons, so in the opinion of the court the charge under Section 304(2)/149 IPC can be framed against three private accused persons; Mohd. Arif, Jahoor Baks and Sher Bahadur.

As death of the deceased is not shown as a result of suicide in the post mortem report so the charge under Section 306 IPC can also not be said to be made out against the appellants.

So far as the charge under Section 343 IPC is concerned, section 343 of IPC runs as follows:-

343. Wrongful confinement for three or more days.-- Whoever wrongfully confines any person for three days, or more, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

Thus, this section also does not apply to the present case as admittedly as per FIR the deceased was apprehended by the police on 13.08.2010 though as per statement of PW-1 the deceased was apprehended by the police on 14th August, 2010 and admittedly the deceased was admitted to the hospital on 15th August, 2010. As per the version of FIR and the statements of the witnesses of facts there is no version that any of the person of the family of the deceased was made to sit in the police chauki for three or more days. Thus, it cannot be said that any of the persons from the prosecution side including the deceased was wrongfully confined by the police for three or more days.

Thus, in the opinion of the court, the charge under Section 343 IPC also cannot be framed against the accused persons.

So far as the argument that the application under Section 216 Cr.P.C. was not moved by the appropriate person is concerned, it is admitted fact that it was moved by the private prosecution counsel without being submitted by the State Counsel but if we go through Section 216 Cr.P.C. it has been clearly mentioned therein that any court may alter or add any charge at any time before the judgment is pronounced, so even if the application moved by the prosection is found faulty, the trial court had ample power to alter charge. Thus, the argument of the learned counsel for the appellants in this regard fails.

So far as the argument of learned counsel for the appellants that no proper sanction was taken for framing charge under Section 302 IPC or any other more heinous section of IPC is concerned, it is true that the sanction was granted by the appropriate authority to frame charge under Sections 306, 343, 504, 506 and 120B IPC and 3(2) 5 SC/ST Act. In this regard Section 216(5) Cr.P.C. is apposite to mention:-

216. Court may alter charge....

(5) If the offence stated in the altered or added charge is one for the prosecution of which previous sanction is necessary, the case shall not be proceeded with until such sanction is obtained, unless sanction had been already obtained for a prosecution on the same facts as those on which the altered or added charge is founded.

Thus, if the sanction has already been obtained for prosecution on the same facts as those on which the altered or added charge is founded then the fresh sanction is not needed. If we go through the sanction order dated 04.03.2011 passed by the Superintendent of Police, Pilibhit, it is found that in this order the whole facts mentioned in the FIR have been narrated on the basis of which the altered charges are proposed to be framed thus the previous sanction can be said to be obtained on the same facts as those on which the altered or added charge is founded.

So far as Section 120B IPC is concerned, this section is about criminal conspiracy as the offence in the case in had is said to have been committed at Police Chauki by the police personnel on the exhortation of the private accused persons after the deceased was apprehended by the police and there is nothing on record to show that there was any criminal conspiracy between the accused persons prior to the commission of crime so the charge under Section 120B IPC is also need not to be framed.

No arguments are placed before the court with regard to the charges under Sections 323, 504, 506 IPC and Section 3(2) (V) of SC/ST Act.

In the opinion of the court, the order of the trial court with regard to alteration of the charges suffers infirmity.

The appeals are allowed. The order impugned is hereby set aside.

The trial court is directed to frame charges against the accused persons as per discussions made above.

Date :- 11.10.2023

gp