Durgesh Kumar Sharma vs State of U.P.and another

Vinod Prasad, J.

Heard Sri Arvind Mishra, learned counsel for the revisionist and learned AGA for the respondent State.

Revisionist is aggrieved by the order the dated 26.2.2011, passed by Additional Sessions Judge/ Fast Track Court No. 3, Maharajganj, in S.T. No. 68 of 2009, State Vs. Krishn Kant Mishra and others, u/s 364A, 302, 201, 120B/34 IPC, P.S. Kotwali, district Maharajganj, concerning Crime No. 858/08, by which discharge application of the accused revisionist Durgesh Kumar Sharma being paper no. 11 Kha/1 and 11 Kha/2 have been rejected by the trial Judge.

According to the prosecution version Kundan alias Ramu, a young infant boy of eight years was playing with his companions children on 21.5.2008 and all of a sudden he eloped. In that respect police was also informed. On 24.5.2008, father informant Hemant Kumar along with other relatives Sunil Kumar Verma, Ram Narayan, Heera Lal etc. came to P.S. Barhaj, district Deoria and there they identified abductee from his cloths and photographs. Corps of the boy, was earlier fetched out from a well on 22.5.2008, which was that of Kundan alias Ramu. Informant was convinced that Krishna Nand Mishra along with his associates have got his son abducted on 21.5.2008 and had plunged his cadaver in the well after murdering him that informant scribed the FIR annexure no. 1 to the affidavit filed in support of this revision and lodged it at P.S. Kotwali Sadar, Maharajganj on 24.5.2008 at 8.30 p.m. which was registered as Crime No. 858/08, u/s 364, 302, 201 IPC.

Autopsy on the dead body of the deceased vide annexure 2 was performed on 23.5.2008 at 4.30 p.m. and cause of his death was noted as asphyxia and shock due to drowning.

Investigation into crime was under taken during course of which, informant Hemant Kumar, his wife Javitri Devi , sister Priyanka alias Preeti and other relatives and witnesses were interrogated and ultimately charge sheet was formulated against accused Krishna Kant Mishra and the revisionist and was filed in court on 22.6.2008. On the basis of the said charge sheet, case was registered in the court and accused persons were summoned and their case was committed to the Court of Sessions for trial.

Revisionist claimed discharge u/s 227 and 228 Cr. P.C. but his prayer was rejected by Additional Sessions Judge FTC Court No. 3 Maharajganj on 16.6.2010, against which revision was filed before this court being Criminal Revision No. 2611 of 2010. The aforesaid revision preferred by revisionist was allowed, and the order refusing to discharge him was set aside and matter was remanded back for reconsideration in accordance with law, vide order dated 15.7.2010 vide annexure no. 9. It was after remand that the discharge prayer of the revisionist was reconsidered by Additional Sessions Judge/ FTC Court No. 3 Maharajganj in S.T. No. 68/09, State Vs. Krishna Kant Mishra and others. For the second time discharge prayer of the accused was rejected vide impugned order dated 26.2.2011. Hence the present revision by the revisionist.

It is submitted by Sri Mishra learned counsel for the revisionist that the revisionist has been falsely implicated in the case and there is no evidence against him except the statement of two witnesses Ghirau Sahni and Hussain that while they were returning after fishing revisionist along with coaccused Krishna Kant Mishra met them in the way and on seeing them they turned their backs towards them and started urinating. It is submitted that aforesaid evidence is in sufficient for prosecution of the revisionist with serious charge of kidnapping and murder. It was also submitted that the revisionist has been falsely implicated, he is not named in the FIR nor he had been assigned any role of kidnapping, nor there is any evidence that he had murdered the deceased and had obliterated crime evidence.

Learned AGA on the other hand contends that primafacie there is sufficient evidence for prosecuting the revisionist as it is a case of circumstantial evidence and conducted investigation revealed that Krishna Kant Mishra and the revisionist hatched up conspiracy along with Tuntun and Vijay Patel and two accused abducted young boy near his school and subsequently his cadaver was fetched out on 25.2.2008 in district Deoria under police circle of P.S. Badhaj. Krishna Kant Mishra was apprehended and at his disclosure statement complicity of rest of the accused was surfaced in the crime. It was further revealed that kidnapping was done for obtaining a ransom of Rs. 1012 lakhs. Investigation further revealed that before strangulating the deceased he was asked about acquittance of the accused and since he replied in affirmative that he was done to death because if he would have been left unhurt, he would have divulged the complicity of the accused in crime.

I have heard learned counsel for the revisionist and learned AGA. It is a case, which is based on circumstantial evidence. A young boy of eight years all of a sudden eloped when he was playing with his companions. In that respect an information was given to the police on the date of elopement i.e. 21.1.2008 on the basis of which FIR was registered and investigation commenced. Subsequently on the following day body of the deceased was taken out from a well. Entire case diary was perused by the trial Judge while passing detailed order. Shamima Khatun one of the witness had seen the deceased in company of two accused Tuntun and Vijay Patel on a motor cycle. Investigation also shows that the residence of accused Durgesh Kumar Sharma was in the vicinity of the house of the informant with whom they had animus. Sohan Prasad, Mahatam Singh named the revisionist and his other associates who had committed the crime. Ghirau Sahni and Hussain have deposed that they had seen the revisionist on the date of the incident at 1112 in the morning, on motor cycle, on which kidnapping was done and that two accused Tuntun and Vijay Patel had the deceased sandwiched between them on the said motor cycle. They had also seen that the revisionist and Krishna Kant Mishra were coming on a Chakroad and after seeing those witnesses they turned back and started urinating. Witness Mahatam has even disclosed the Motor Cycle No. as U.P. 65B 4781. Investigation further revealed the complicity of the revisionist in crime. Trial Judge found that there was sufficient evidence of conspiracy and therefore has refused to discharge the revisionist by passing the impugned order.

At the stage of discharge u/s 227 and 228 Cr. P.C., only a primafacie case has to be seen. It is not legal requirement that at that stage evidence of prosecution witnesses and other circumstance is not to be sifted to record a pre trial finding of acquittal. If there is sufficient ground for prosecution, accused can not be discharged. It is trite law that even on grave suspicion charge can be framed against the accused and prosecution must be afforded opportunity to prove its case against the culprits.

In view of the above discussion, I do not find any merit in this revision, as the impugned order does not suffer from any error of law or that of fact.

Revision being bereft of merit is here by dismissed.