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IN THE HIGH COURT OF ALLAHABAD
Rahul Chaturvedi, J.
Brijesh Kumar And Ors. – Applicants
Versus
State of U.P. and Another – Opposite Parties
Application U/S 482 No. - 7478 of 2020
Decided On : 07-08-2020
Penal Code, 1860 – Section 304 – Code of Criminal Procedure, 1973 – Sections 227, 482, 154 – Discharge – Problematic and fluid question of law, involved in the present criminal application is, as to whether evidence/material of impeccable and sterling quality, if, left unattended during the investigation by the investigator or by the prosecutor, could they be produced by the accused while seeking 'DISCHARGE' and court can take judicial notice of those facts/documents material – Prayer sought in the instant 482 Cr.P.C application while invoking the extraordinary jurisdiction of this Court is, to quash the order passed by the learned Additional Sessions Judge, Court No.3, Mainpuri in S.T. relating to case crime no.107 of 2018 under section 304 IPC, Police Station-Bewar, District-Mainpuri whereby learned Additional Sessions Judge has rejected the “Application no.9-B” moved on behalf of applicants under section 227 Cr.P.C., seeking their discharge from the offence mentioned above. –
Finding of the Court:
Applicants have filed number of medical prescriptions of the deceased, buttressing the fact that she was old patient of hypertension. Thus, taking the help of these documents, various medical prescriptions of Ms. Kiran Devi, deceased and the guidelines rendered by Hon'ble the Apex Court in the case of Rajiv Thapar and others (supra) whereby it has been mentioned that material produced by the accused/applicants are such that it would rule out and displace the accusations levelled against them. – These material if place on record and taken into consideration, clearly reject and over rule the veracity of the allegations contained in the accusation levelled by the prosecution/complainant. – It must be taken into account at this stage. – The reason is quite simple that if these materials are taken on record they would change the entire tone, texture and tenor of the accusation made in the FIR and completely blast the prosecution story and save the accused/applicants from the wrath, undue and unwarranted criminal case against them. – Court is at loss at this juncture to give any view point about the veracity of these documents i.e. medical prescriptions of the deceased annexed as annexures to the petition thus, it is hereby directed that the applicants would submit all these documents/prescriptions before the court concern and any other document relating to her ailments i.e. deceased was suffering from hyper tension and the court concern shall direct the investigator to conduct further investigation about the authenticity of those medical prescriptions as well as record 161 statement of the concern doctor who conduct the post mortem within a period of six weeks from the date of filing of this order before the Trial Court. – Thereafter, the court again would decide the discharge application taking into account the holistic and peneromic view of all the material on record and decide the same with good reasons by 31.12.2020 positively. – There shall not be any laxity on the part of the trial court in deciding the discharge application by that date. – Court is quite satisfied that the material produced by the defence in their discharge application should be taken into account while deciding the discharge application. –
Result: Application Allowed
JUDGMENT :
1. Heard Sri Nipun Singh, learned counsel for the applicants, learned A.G.A. for the State and perused the record.
2. The problematic and fluid question of law, involved in the present criminal application is, as to whether evidence/material of impeccable and sterling quality, if, left unattended during the investigation by the investigator or by the prosecutor, could they be produced by the accused while seeking 'DISCHARGE' and court can take judicial notice of those facts/documents material ?
3. After appreciating the gravity of this legal question involved, this Court is of the view to decide this application at the threshold/admission stage with the aid and help of learned counsel for the rival parties and learned A.G.A and perused the records/materials of the case.
4. The prayer sought in the instant 482 Cr.P.C application while invoking the extraordinary jurisdiction of this Court is, to quash the order dated 31.01.2020 passed by the learned Additional Sessions Judge, Court No.3, Mainpuri in S.T. No.216 of 2018 (State Vs. Brijesh Kumar and others) relating to case crime no.107 of 2018 under section 304 IPC, Police Station-Bewar, District-Mainpuri whereby learned Additional Sessions Judge has rejected the “Application no.9-B” moved on behalf of applicants under section 227 Cr.P.C., seeking their discharge from the offence mentioned above.
5. The distilled facts of the case in hand, the applicants, though they are charge-sheeted accused of abovementioned case crime for alleged act of manslayer of one Kiran Devi(55). The applicant nos. 1, 2 and 3 are real brothers whereas the applicant no.4 is the father of above mentioned three applicants. As gathered from the FIR, there was a long drawn serious animosity and bad breath between the applicants and opposite party no.2 on account of local body elections of the year 2017 which is point of genesis in present criminal case.
6. Submission made by learned counsel for the applicants, that highly belated FIR was lodged by one Anuj Kumar-opposite party no.2(son of the deceased) against five named accused persons which includes the applicants for the incident said to have been taken place on 25.02.2018 and its report under section 154 Cr.P.C i.e. F.I.R. was registered on 01.03.2018. Thus, there is substantial and unexplained delay in lodging of the FIR about eight good days.
7. Prosecution story as mentioned in the FIR, the informant Anuj Kumar though the resident of Village-Madhukarpur, Mainpuri but at present he is gainfully employed at Delhi in some private concern. On 25.02.2018 around three in the evening with regard to trivial and insignificant issue i.e. drainage from the bathroom, the named accused persons assaulted his mother by lathi and dandas causing severe and grievous injuries to her which resulted into her sad and untimely demise though during her treatment in private nursing home at Agra. The co-villagers extended help and taken her to Saifai Medical College, Saifai, Etawah for her treatment and lastly she was shifted to Maa Bhagwati Hospital, Agra but unfortunately on 01.03.2018 around one in the night, she took her last breath. It is borne out from the FIR itself that soon after her demise at nursing home, Agra, first of all her inquest was prepared in the nursing home itself and thereafter dead body was transmitted to the mortuary at Agra for her Autopsy report and lastly, the informant managed to lodge the FIR against named accused persons in consonance with the post mortem report of the deceased after coming back to Mainpuri at Police Station-Bewar Mainpuri.
8. Learned counsel for the applicants has drawn the attention of the Court to the post mortem report dated 01.03.2018 (Annexure-5) conducted by Dr. Sudhir Kumar. A perusal of the post mortem report indicates that the deceased has sustained following two injuries over her person :-
(ii) 6 X 6 c.m. Color on bluish color on Rt. Upper of thigh laterally.
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