Allahabad High Court
Vijay Lakshmi vs State Of U.P. And Another on 1 August, 2025
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2025:AHC:129957
Reserved on: 04.07.2025
Delivered on: 01.08.2025
Court No. - 80
Case :- CRIMINAL REVISION No. - 3528 of 2023
Revisionist :- Vijay Lakshmi
Opposite Party :- State of U.P. and Another
Counsel for Revisionist :- Manoj Kumar
Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
1. Challenge in this criminal revision is to the order dated 24.05.2023 passed by Additional District and Sessions Judge/Special Judge (PC Act), Court No.-1, Gorakhpur in Sessions Trial No. 2200 of 2022 (State Vs. Vijay Lakshmi and Others), arising out of Case Crime No. 0003 of 2022, under Sections 302, 201, 120-B IPC, Police Station-Harpur Budhat, District-Gorakhpur, whereby the discharge application filed by co-accused Vinod Yadav) (Paper No. 7Kha) and the discharge application filed by accused/revisionist Vijay Lakshmi (Paper No. 9Kha) in terms of Section 227 Cr.P.C. have been rejected by Court below.
2. I have heard Mr. Manoj Kumar, the learned counsel for revisionist and the learned A.G.A. for State-opposite party-1.
3. Perused the record.
4. Present criminal revision came up for admission on 31.07.2023 and notice was issued to first informant-opposite party-2.
5. In compliance of above order dated 31.07.2023, office has submitted a report dated 01.11.2023 stating therein that notice issued to opposite party-2 has been served through legal heirs. However, in spite of service of notice, neither any counter affidavit has been filed on behalf of first informant-opposite party-2 in opposition to this criminal revision nor any one has put in appearance on his behalf to oppose this criminal revision, even in revised call.
6. Record shows that in respect of an occurrence, which is alleged to have occurred on 05.01.2022, a delayed FIR dated 06.01.2022 was lodged by first informant-opposite party-2 Awadhesh Yadav, and was registered as Case Crime No. 0003 of 2022, under Section 302 IPC, Police Station-Harpur Budhat, District-Gorakhpur. In the aforesaid FIR, an unknown person was arraigned as a solitary accused.
7. After aforementioned FIR was lodged, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter-XII Cr.P.C. Accordingly, the inquest (Panchnama) of the body of deceased was conducted on 06.01.2022. Subsequent to above, the post mortem of the body of deceased was conducted on the same day. In the opinion of Autopsy Surgeon, who conducted autopsy of the body of deceased, the cause of death of deceased was Asphyxia as a result of anti-mortem strangulation. The Autopsy Surgeon found following anti-mortem injuries on the body of deceased;-
"A.M. Injuries;-
1. Ligature mark present in front of neck of size 27 cm x 1.5 cm, 5 cm below Rt. Ear, 5 cm below chin and 6 cm below left ear on cutting ligature underneath, subcutaneous tissue hematoma is present. On opening trachea congested Hyoid bone fractured.
2. Abrasion is present over Rt. Upper eyelid."
8. Investigating Officer thereafter recorded the statements of following witnesses under Section 161 Cr.P.C., who have also been nominated as prosecution witnesses in the charge sheet/police report;-
(i). Awadhesh Yadav (First informant)
(ii). Arun Kumar Yadav
(iii). Balram Maurya
(iv). Arun Yadav
(v). Vivek Yadav
(vi). Atish Yadav
(vii). Lala Prasad Yadav
(viii). Narad Yadav
(ix). Reeta Devi
(x). Vikas Yadav
(xi). Sudha Devi
(xii). Kashi
(xiii). Jagdish Yadav
(xiv). Radhika Devi
(xv). Uma Shankar Yadav
(xvi). Jainand Yadav
(xvii). Virendra Yadav
(xviii). Rajendra Yadav
(xix). Sarita Devi
(xx). Saroj Yadav
(xxi). Rambha Devi
(xxii). Janardan Yadav
(xxiii). Surti Devi
(xxiv). Awadh Behari
(xxv). Surendra Pratap Singh
(xxvi). Amarnath Singh Yadav
(xxvii). Satyendra Yadav @ Chhotu
(xxviii). Ghanshyam Yadav
(xxix). Pramod Yadav
(xxx). Mulayam Yadav
(xxxi). Ramcharan Yadav
(xxxii). Man Singh
(xxxiii). Ram Singh Yadav
(xxxiv). Ravindra Singh Yadav
(xxxv). Jai Prakash Yadav
9. On the basis of above and other material collected by Investigating Officer, during course of investigation, he came to the conclusion that offence complained of is established against two persons namely Vijay Lakshmi (wife of Rakesh Yadav) and Vinod Yadav. He, accordingly, opined to submit a charge sheet. Ultimately, Investigating Officer, submitted the charge sheet/police report dated 29.09.2022 in terms of Section 173(2) Cr.P.C., whereby and whereunder, aforementioned accused were charge sheeted under Sections 302, 201 and 120-B IPC.
10. Upon submission of above-mentioned charge sheet/police report, cognizance was taken upon same by the Jurisdictional Magistrate in exercise of jurisdiction under Section 190(1)(b) Cr.P.C. Consequently, the charge sheeted accused were summoned. Subsequently, the Jurisdictional Magistrate complied with the mandate of Section 207 Cr.P.C. i.e. supply of documents to accused and thereafter committed the case to the Court of Sessions, as per the provisions of Section 209 Cr.P.C. inasmuch as, offence complained of is triable exclusively by the Court of Sessions. Resultantly, Sessions Trial No. 2200 of 2022 (State Vs. Vijay Lakshmi and Others) arising out of Case Crime No. 0003 of 2022, under Sections 302, 201, 120-B IPC, Police Station-Harpur Budhat, District-Gorakhpur came to be registered and is now pending in the Court of Additional District and Sessions Judge/Special Judge (PC Act), Court No.-1, Gorakhpur.
11. At this juncture, the revisionist, who is a charge sheeted accused, filed a discharge application in terms of Section 227 Cr.P.C. seeking discharge in aforementioned Sessions Trial. Same was registered as Paper No. 9Kha.
12. It is apposite to mention here that co-accused Vinod Yadav also filed a discharge application before Court below in terms of Section 227 Cr.P.C., which was registered as Paper No. 7 Kha.
13. Aforementioned applications were opposed by the prosecution. However, no written objections were filed by the DGC (Criminal) or the first informant-opposite party-2 in opposition to aforementioned discharge applications.
14. Court below, thereafter, examined the grounds raised in the discharge application filed by revisionist. It referred to four judgments of Supreme Court i.e. (1). Superintendent and Remembrancer of Legal Affairs, West Bengal Vs. Anil Kumar Bhunja and Others, (1979) 4 SCC 274, (2). State of M.P. Vs. S.B. Johari, (2000) 2 SCC 57, (3). Palwinder Singh Vs. Balwinder Singh and Others, (2008) 14 SCC504 and (4) State of Maharashtra Vs. Priya Sharan Maharaj and Others, (1997) 4 SCC 393, and therefore, recorded an abrupt conclusion that as per the material on record, the prosecution of the accused can be sustained. On the above finding, Court below rejected the discharge application filed by revisionist, vide order dated 24.05.2023.
15. Thus feeling aggrieved by the above order dated 24.05.2023 passed by Additional District and Sessions Judge/Special Judge (PC Act), Court No.-1, Gorakhpur, revisionist, who is a charge sheeted accused, has now approached this Court by means of present criminal revision.
16. Mr. Manoj Kumar, the learned counsel for revisionist submits that the order impugned in present criminal revision is manifestly illegal and in excess of jurisdiction. Consequently, the same is liable to be quashed by this Court. It was then contended by the learned counsel for revisionist that present case is a case of circumstantial evidence. As such, there is no eye witness of the occurrence in question. Revisionist, who has been charge sheeted was not named in the FIR.
17. It was further submtted by the learned counsel for revisionist that complicity of an accused in a case based on circumstantial evidence can be inferred only in accordance with the parameters laid down by the Apex Court in the case of Sharad Birdhichand Sarda Vs. State of Maharashtra AIR 1984 SC 1622. He has referred to paragraph 152 of the report. For ready reference, the same is extracted herein under;-
"152. Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant v. The State of Madhya Pradesh.(1) This case has been uniformly followed and applied by this Court in a large number of later decisions uptodate, for instance, the cases of Tufail (Alias) Simmi v. State of Uttar Pradesh(2) and Ramgopal v. Stat of Maharashtra(3). It may be useful to extract what Mahajan, J. has laid down in Hanumant's case (supra):
"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground far a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
18. It was then submitted by the learned counsel for revisionist that the only evidence, which has emerged against revisionist is that as per the CDR report of the mobile phone of the deceased, he had a chat with the accused/revisionist. However, the details of the conversation have not been recovered/obtained by the Investigating Officer. He, therefore, contended that simply on the basis of aforementioned evidence, which is neither credible nor clinching, the prosecution of the accused/revisionist for an offence under Sections 302/120B IPC cannot be sustained. On the above conspectus, it was thus urged that Court below has erred in rejecting the discharge application filed by revisionist.
19. It was lastly contended by the learned counsel for revisionist that perusal of the order impugned passed by Court below will go to show that Court below has reproduced the discharge application filed by both the accused ad-verbatim. Thereafter, the Court has noted that the discharge application filed by accused has been opposed by the learned A.G.A. Court has then referred to the four judgments of Supreme Court and thereafter, recorded an abrupt conclusion in the penultimate part of the order dated 24.05.2023 that as per the material on record, sufficient evidence exists to frame charges against accused. It would be apt to reproduce the same herein under;-
^^पत्रावली के अवलोकन से स्पष्ट है कि इस घटना की प्रथम सूचना रिपोर्ट वादी मुकदमा/शिकायतकर्ता अवधेश यादव द्वारा दिनांक 06-01-2022 को दर्ज करायी गयी थी। जिसमे अज्ञात व्यक्ति द्वारा वादी मुकदमा के भाई की हत्या करके उसके शव को बाग मे फेक देने का आरोप है। वादी मुकदमा की शिकायत के बाद अज्ञात के विरुद्ध अभियोग पंजीकृत किया गया। जिसकी विवेचना करायी गयी। तमामी विवेचना, रिकार्ड के अवलोकन व पूछताछ आदि के आधार पर अभियुक्तगण विजय लक्ष्मी एवं विनोद यादव के विरूद्ध विवेचना के उपरान्त पर्याप्त आधार पाते हुए धारा 302, 201, 1208 भा०दं०सं० के अन्तर्गत आरोप पत्र प्रस्तुत किया गया है। विवेचना के दौरान संकलित किये गये साक्ष्य के आधार पर आवेदकगण / अभियुक्तगण के विरूद्ध प्रथम दृष्टया मामला पाते हुए अधिनस्थ न्यायालय द्वारा संज्ञान लिया गया है। पत्रावली के अवलोकन पर यह पाया गया कि अभियुक्तगण के विरुद्ध आरोप विरचित किये जाने हेतु प्रथम दृष्टया पर्याप्त साक्ष्य पत्रावली पर उपलब्ध है। प्रकरण मे अभी विवेचना एक अन्य अभियुक्त राकेश यादव के विरुद्ध प्रचलित भी है। ऐसी स्थिति में अभियुक्तगण / आवेदकगण की ओर से प्रस्तुत प्रार्थना पत्र 7 ख व 9 ख स्वीकार किये जाने योग्य नहीं है।**
20. It was thus contended by the learned counsel for revisionist that no attempt was made by Court below to examine as to how far and to what extent, the said material could be relied upon to form an opinion that an offence under Section 302 IPC is made out in accordance with the parameters laid down by the Apex Court in the case of Sharad Birdhichand Sarda (Supra) or not. As such, no reasons have been recorded by Court below in support of the conclusion drawn. Learned counsel for revisionist then referred to the judgment of Supreme Court in Ram Krishna Forgings Ltd. Vs. Ravindra Loonkar Resolution Professional of Acil Ltd., (2024) 2 SCC 122, wherein it has been observed that a judicial authority is also required to record reasons for it's decision.
21. With reference to above, the learned counsel for revisionist urged that Court below has rejected the discharge application filed by revisionist in utter disregard of the papers accompanying the police report. No attempt was made by Court below to peruse the papers accompanying the police report and thereafter record a finding as to what material has emerged against revisionist on the record and thereafter, denude as to whether prosecution of the accused/revisionist can be sustained or not on the basis of said material. Since aforesaid exercise was not undertaken by Court below, therefore, Court below has failed to exercise it's jurisdiction diligently. To the contrary, Court below has passed the order impugned in a casual and cavalier exercise of jurisdiction vested in it. To buttress his submission, the learned counsel for revisionist has referred to the judgment of Supreme Court in Sanjay Kumar Rai Vs. State of Uttar Pradesh and Another (2022) 15 SCC 720, wherein Court has observed regarding the manner, in which, a discharge application is to be decided. Reliance is placed upon paragraph 15 of the report. The same is extracted herein under;-
"15. Further, it is well settled that the trial court while considering the discharge application is not to act as a mere post office. The Court has to sift through the evidence in order to find out whether there are sufficient grounds to try the suspect. The court has to consider the broad probabilities, total effect of evidence and documents produced and the basic infirmities appearing in the case and so on. [Union of India v. Prafulla Kumar Samal5]. Likewise, the Court has sufficient discretion to order further investigation in appropriate cases, if need be."
22. Learned counsel for revisionist thus urged that the order impugned cannot be sustained and is therefore, liable to be set aside by this Court. As such, the present criminal revision is liable to be allowed.
23. Per contra, the learned A.G.A. representing State-opposite party-1 has vehemently opposed the present criminal revision. Learned A.G.A. submitted that during course of investigation, sufficient material was gathered by the Investigating Officer on the basis of which, prima-facie the complicity of revisionist in the crime in question was established. Accordingly, Investigating Officer submitted the charge sheet against revisionist. It was next contended by the learned A.G.A. that Court below has recorded a clear finding that as per the papers accompanying the police report submitted by the Investigating Officer, there is sufficient evidence against revisionist on the basis of which, charges can be framed/trial of the accused/revisionist can be sustained. This finding recorded by Court below could not be dislodged by the learned counsel for revisionist. Since the finding could not be dislodged, the conclusion cannot be altered. On the above conspectus, the learned A.G.A. thus contended that no interference is warranted by this Court in present criminal revision.
24. Having heard the learned counsel for revisionist, the learned A.G.A. for State-opposite party-1 and upon perusal of record, this Court finds that the only issue, which is worth consideration at this stage is whether Court below while passing the order impugned has complied with the mandate of Supreme Court as is manifest in paragraph 15 of the judgment in Sanjay Kumar Rai (Supra). As already noted above, Court below has recorded an abrupt conclusion as is evident from the recital occurring in the penultimate part of the order impugned dated 25.04.2023. It is thus apparent that no attempt was made by Court below to peruse the papers accompanying the police report and thereafter denude it's view. In view of above, the order impugned is not only illegal but also arbitrary. As such, the same cannot be sustained and is therefore, liable to be quashed by this Court.
25. In view of the discussion made above, the present criminal revision succeeds and is liable to be allowed.
26. It is, accordingly, allowed.
27. The order impugned dated 24.05.2023 passed by Additional District and Sessions Judge/Special Judge (PC Act), Court No.-1, Gorakhpur in Sessions Trial No. 2200 of 2022 (State Vs. Vijay Lakshmi and Others) arising out of Case Crime No. 0003 of 2022, under Sections 302, 201, 120-B IPC, Police Station-Harpur Budhat, District-Gorakhpur shall stand quashed.
28. Court below shall decide the discharge application filed by accused/revisionist afresh in the light of observations made herein above expeditiously after receipt of a certified copy of this order. The revisionist shall file the certified copy of this order before Court below within three weeks from today.
Order Date :- 01.08.2025
Vinay
