Pradeep Kumar Srivastava @ Raja ... vs State Of U.P. Thru. Prin. Secy. Home Lko. ...
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Allahabad High Court

Pradeep Kumar Srivastava @ Raja ... vs State Of U.P. Thru. Prin. Secy. Home Lko. ... on 5 February, 2025

Author: Saurabh Lavania

Bench: Saurabh Lavania

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 



 

 
Neutral Citation No. - 2025:AHC-LKO:8212
 
Court No. - 12
 

 
Case :- APPLICATION U/S 482 No. - 703 of 2025
 
Applicant :- Pradeep Kumar Srivastava @ Raja Srivastava
 
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko. And Another
 
Counsel for Applicant :- Manoj Kumar Mishra,Piyush Tripathi,Shubham Kumar Verma
 
Counsel for Opposite Party :- G.A.,Paritosh Shukla,Sukh Deo Singh
 
Hon'ble Saurabh Lavania,J.
 

 

1. Heard Sri Manoj Kumar Mishra, learned counsel for the applicant as well as Sri Sukh Deo Singh, who appears for opposite party No.2/Mohd. Vaseem..

2. By means of present application the applicant has assailed the order dated 07.01.2025 passed by the Additional District & Session Judge/F.T.C. I Sultanpur in Session Trial No. 470 of 2024 : State Vs. Dharmdutt and others, arising out of FIR No. 467A of 2024 under Sections 147, 148, 149, 302, 323, 504, 506 I.P.C., Police Station Kamrauli, District Amethi, by which the trial court allowed the application preferred by the prosecution under Section 319 Cr.P.C., after taking note of the objection 52 Kha, and summoned the present accused, who was named in the F.I.R. registered as Case Crime No. 467A of 2024 under Sections 147, 148, 149, 302, 323, 504, 506 I.P.C., Police Station Kamrauli, District Amethi.

3. The brief facts of the case, which are relevant for the purposes of present case are as under:

(i) The opposite party No.2/informant Mohd. Waseem (PW-1) son of Mohd. Habib lodged an F.I.R on 2.08.2014 and taking note of the allegations levelled therein, the same was registered as Case Crime No. 467A of 2024 under Sections 147, 148, 149, 302, 323, 504, 506 I.P.C., at Police Station Kamrauli, District Amethi. According to this F.I.R., in nutshell, the incident occurred on 02.08.2024 at about 10 hours and in the incident one Mohd. Mauteen (who ultimately expired on 03.08.2024) brother of the first informant sustained gun shot injury caused by co-accused Vidya Bhusan by country made pistol. As per the F.I.R. the incident occurred near the electricity shop of the co-accused Dharmadutt Ojha and the second time incident was also occurred at hospital situated at Jagdishpur. This F.I.R. further indicates that the co-accused Dharmdutt Ojha, Shekher Srivastava and Raja Srivastava (present applicant) assaulted the deceased with lathi and danda. For the aforesaid, the F.I.R. was lodged against Dharmdutt Ojha, Shekher Srivastava, Vidya Bhushan and Raja Srivastava;

(ii) The post-mortem of the deceased was carried out on 3.8.2014 and according to the post-mortem, which is on record as Annexure No.2, the deceased sustained injuries, which can be caused by hard and blunt object and firearm.

(iii) The Investigating Officer after taking note of the statement of the Dr. Raeesh Ahmed, opined that the present applicant was not present at the place of crime, according to which the applicant was admitted in the hospital and was advised to take rest and he was discharged on 03.08.2024. The Investigating Officer also took note of the statements of Satish Tripathi, Raju Yadav and Udai Narayan and also the affidavits of Dev Nath Mishra and Rakesh Kumar Tripathi. According to the statements of these persons named herein before, the applicant was admitted in the hospital and was advised to take rest and he was discharged on 03.08.2024.

(iv) The Investigating Officer after completion of the investigation submitted the charge-sheet against Dharmdutt Ojha, Shekher Srivastava, Vidya Bhushan and exonerated the present applicant.

(v) After submission of the charge-sheet, the matter was committed to the court of Sessions, where the case was registered as Session Trial No. 470 of 2024 (State Vs. Dharmdutt and others), arising out of FIR No. 467A of 2024 under Sections 147, 148, 149, 302, 323, 504, 506 I.P.C., Police Station Kamrauli, District Amethi and the trial court based upon the evidence collected by the Investigating Officer framed the charges against the accused named in the charge-sheet.

(vi) Mohd Waseem (PW-1) was first time examined on 25.10.2017 and thereafter was cross-examined on 16.11.2017 and his examination was concluded on 06.11.2017. The relevant portion of the statement of PW-1 is extracted herein-under:

^/kVuk fnukad 02&08&2014 le; yxHkx 10 cts fnu dh gS ml fnu esjs HkkbZ eks0 eksrhu o esjk yM+dk eqtlfle eqnfLlj mQZ lksuw ?kj ls pk; ihus ds fy, cjl.Mk pkSjkgk x;s Fks tSls gh ;s yksx /keZnRr vks>k ds bysfDVªd nqdku ds ikl igqps rks esjs xkao ds /keZnRr vks>k] fo|k Hkw"k.k mQZ xqMMw] 'ks[kj JhokLro] jktk JhokLro ;s esjs xkao ds jgus okys gS esjs xzke lHkk dk dksVk fo|k Hkw"k.k mQZ xqMMw ds ikl FkkA ge yksxks aus fojks/k fd;k Fkk mlh dksVs dks ysdj eq>ls o esjs ifjokj okyks ls jaft'k j[krs Fks blh jaft'k dks ysdj vfHk;qDrx.k esjs HkkbZ eksrhu vkSj yM+ds eqtfle eqnfLlj mQZ lksuw ds igqprs gh xkyh xqIrk nsus yxsA fo|k Hkw"k.k ds gkFk esa reUpk Fkk rFkk 'ks[kj JhokLro] /keZnRr vks>k] jktk JhokLro ds gkFk esa ykBh MUMk FkkA vfHk;qDr fo|k Hkw"k.k esjs HkkbZ eksrhu ds tku ls ekj Mkyus dh fu;r ls reaps ls Qk;j dj fn;k ftlls xksyh esjs HkkbZ dks xksyh nkfgus iSj ds tka/k esa yxh vkSj rhuksa vfHk;qDrx.k ykBh MUMs ls ekjus ihVus yxs esjk HkkbZ fpYykdj tehu ij fxj x;kA esjs yMds xksgkj yxk;s eksrhu ds cpkus ds fy, A 'kksj xqgkj lqudj ?kVukLFky ij eksgEen eqckjd ekStk 'kSkuk xkao iwjs feJ etjs 'kkSuk vk x;s vfHk;qDrx.k xkfy;k o /kedh nsrs gq, Hkkx x;s xkao ds dkQh yksx /kVuk LFky ij vk x;s esjs HkkbZ eksrhu dks fcgks'kh gkyr esa ljdkjh vLirky txnh'kiqj eas ysdj x;s bykt gsrq esjs nksuksa yM+ds eqtLle] eqnfLlj mQZ lksuw vkSj dbZ yksx fey dj ljdkjh vLirky txnh'kiqj ys x;sA esjs HkkbZ eksrhu dk bykt py jgk Fkk rks ogka fo|k Hkw"k.k] 'ks[kj JhokLro] jktk JhokLro] /keZnRr vkS>k vkSj muds lkFk nks pkj yksx vLirky ds vUnj vk x;s vkSj ogkW Hkh esjs HkkbZ dks xkyh xqIrk nsrq gq, ekjk ihVk vkSj tku ls ekjus dh /kedh fn;kA esjs HkkbZ dh gkyr xEHkhj Fkh blfy, txnh'k ds MkDVj us ftyk fpfdRlky; lqYrkuiqj fjQj dj fn;k rks ge yksx eksrhu dks ysdj ftyk vLirky lqYrkuiqj igqps rks esjs HkkbZ ftyk vLirky lqYrkuiqj esa vkrs gh gkyr vkSj xEHkhj gks x;h esjs HkkbZ eksrhu dks ftyk vLirky lqYrkuiqj ls Vªkek lsUVj y[kuÅ dks fjQj dj fn;k ge yksx Vªkek lsUVj y[kuÅ ysdj tkus okys Fks fd esjs HkkbZ eksrhu dh e`R;w gks x;hA /kVuk ds ckcr eSus eksgEen bejku [kku fuoklh xzke HkVBk dk iqjok ls cksy dj fjiksVZ fy[kkbZ Fkh tks eSus cksyk Fkk ogh bUgksus fy[kk Fkk fy[kus ds ckn eq>s i s ekjs ihVs Fks vkSj esjk HkkbZ eksrhu ?kVuk ds ckor fjiksVZ fy[kk;k rc vfHk;qDrx.k us esjs HkkbZ dks tku ls ekj nsus dh /kedh fn;k FkkA^

(vii) The above quoted statement of PW-1 indicates that he reiterated the story of the prosecution as indicated in the F.I.R. In this regard it would also be added to indicate with regard to the presence of PW-1 at hospital situated at Jagdishpur the suggestion was given to PW-1 and in response this witness stated that ";g Hkh dguk xyr gS fd lh0,p0lh0 txnh'kiqj eSaus dksbZ ?kVuk ugha ns[kk u eSa ekStwn gh Fkk"

(viii) Muddshir (PW-2) whose presence at the place of crime is apparent from F.I.R. was examined on 15.03.2022 and 21.03.2022, as appears from Annexure No. 9, which also indicates that the case was adjourned on 21.03.2022 for examination-in-chief of PW-2 and a perusal of part of examination-in-chief (Annexure 9) indicates that this witness narrated the story indicated in the F.I.R.

4. After taking note of the aforesaid including the statement(s) of PW-1 and PW-2 on record as also the basis of the exoneration of the applicant, which would fall under the plea of alibi, and the basic story indicated in the F.I.R. and the law in this regard, according to which the trial court is under obligation to consider the evidence led before it, on being confronted, learned counsel for the applicant says that the present application be dismissed with liberty to the applicant to appear before the concerned court seeking benefit of the judgment passed by Hon'ble Apex Court in the case of Satender Kumar Antil vs. Central Bureau of Investigation and another, (2022) 10 S.C.R. 351 : (2022) 10 SCC 51 and Musheer Alam vs. State of Uttar Pradesh and Another, 2025 SCC OnLine SC 116, according to which once the investigation is over and the charge-sheet is filed then the accused should be asked to appear before the Court concerned and should furnish bail to the satisfaction of the trial court.

5. The aforesaid has been opposed by the learned A.G.A

6. Accordingly, the petition is dismissed with liberty as prayed for.

Order Date :- 5.2.2025

Arvind