SHIV PRAKASH TIWARI Vs. STATE OF U P

JUDGEMENT

(1.) A group of close associates of half a dozen plus one revisionists namely, Shiv Prakash Tiwari. three sibling brothers Murli Upadhyay, Pawan Upadhyay, Ravi Upadhyay.teamed with Pintoo Singh, Pankaj Pathak, his father Paras Pathak and Kallu Mishra, have invoked the revisional jurisdiction of this Court, mooting a legal question for determination as to whether they can be improperly charged and be prosecuted for an offence, which they have never committed on the pretext that at the subsequent stage of trial their charge can be suitably amended? Mooting said question they have questioned the validity and sustainability of impugned order dated 17.2.2011 passed by Special Judge (SC/ST Act), Varanasi in S.T. No. 360 of 2010 State v. Murli Upadhyay and Ors. Revisionists grievance is that Code of Criminal Procedure as well as Constitution, which is fountain head of all laws in India, both mandates that accused can be charged and be prosecuted only for the crime/ offence committed by them disclosed either in the police case diary filed alongwith the charge-sheet or in the statements of witnesses recorded during inquiry conducted by the Magistrate under Sections 200 and 202 Code of Criminal Procedure, herein after referred to as the Code. Trial Court cannot improperly charged and commence the trial of accused on the pretext that at the later stage of the same charge can be suitably amended.

(2.) Before adverting to the harangued question, a quick search light on the back ground facts indicate that revisionist No. 1 and informant Respondent No. 2 Jai Prakash Tiwari are uterine brothers being sons of Late Raja Ram Tiwari. In between them, their relatives and associates an incident of assault occurred on 26.4.2009 concerning an immovable property, regarding which Original Suit No. 130 of 2009 Aanchal Prakash v. Suresh and Ors., is pending before Civil Judge, (JD) Hawaii, district Varanasi and in which an interim injunction under Order 39 Rule 1 and 2 was also passed on 12.2.2009. Plaint of the Suit and injunction order are Annexure 1 and 2 to the affidavit, appended alongwith this revision. It is noted here that the Suit was in respect of a gift deed executed on 11.8.2006 by Smt. Savitri Devi, mother of revisionist No. 1 and informant Respondent No. 2, in favour of Aanchal Prakash, wife of revisionist No. 1 and her daughter in-law. Execution of the gift deed had succeeded by digging up of a foundation on 24.6.2009 and because of that on the date of the incident (26.6.2009) both the parties engaged themselves in a brawl armed with blunt objects and assaulted men from either side. From the side of the revisionists, Shiv Prakash Tiwari, and Pawan Upadhyay, revisionist Nos. 1 and 2, sustained head injuries and revisionist No. 1 had a partial bone fracture of the right side head. Revisionist No. 1 got a FIR of the incident registered at PS Rohania district Varanasi vide Crime No. 270 of 09, under Sections 147, 148, 323 Indian Penal Code. Copy of the FIR alongwith two medical examination reports are Annexure 3 to 5 of the affidavit appended alongwith this revision. Ensued investigation into the crime ultimately culminated in laying down a charge-sheet, Annexure No. 6, before the Court on 26.6.2009 and, on that basis cognizance was taken by the Magistrate on 15.7.2009 against the charge-sheeted accused.

(3.) In respect of that very incident another brother informant Respondent No. 2 Jai Prakash Tiwari also got a cross version lodged as Crime No. 270 A, of 2009, under Sections 147, 148, 308, 323, 506 Indian Penal Code, at the same police station vide Annexure No. 7. From his side Suresh Tiwari had sustained injuries and was medically examined on the same day at 3.20 p.m. He was also got admitted in Institute of Medical Science BHU Varanasi. His medical report at SSPG Hospital Varanasi vide Annexure 8 to the affidavit indicates that he had sustained lacerated wound muscle deep on the right side of head above right eye and was advised for X-Ray. Brain matter was protruding from posterior and right part of his head. Rest of the injuries sustained by him were all contusions on various parts of his torso. In the midst of his treatment, after three days, Suresh Tiwari lost his life on 29.4.2009 at 5.50 p.m. Papers regarding his death and certificate of the same are Annexures 9 and 9A, issued from Singh Medical and Research Centre Private Ltd. Teliyabad, Varanasi. According to Annexure 9A, Suresh Tiwari had expired due to cardio respiratory arrest. Autopsy report of the deceased Annexure No. 11, conducted on 30.4.2009 at 4.30 p.m. however, records cause of death due to coma as a result of injury to head and brain. Investigation into the counter version, Crime No. 270 A of 2009, also concluded in filing of a charge-sheet on 4.7.2009 against named revisionist accused, resulting in taking cognizance by the Magistrate on 16.7.2009 vide Annexure No. 13. In this crime number, finding the case of the accused revisionists triable by Session's Court, after observing due formalities, the same was committed to the Session's Court by the Magistrate, where it was registered as S.T. No. 360 of 2010 State v. Murli Upadhyay and Ors. and then was allotted to Special Judge SC/ST Act Varanasi for trial. At the stage of Section 227/228 Code of Criminal Procedure i.e. framing of charges, revisionists accused moved an application, Annexure 14, on 29.7.2010., raising objections for charging them under Section 302/149 Indian Penal Code. Their said prayer was negatived by the trial Judge by passing the impugned order dated 17.2.2011, who thereafter framed charges against the accused revisionist under Sections 147, 148, 323/149, 325/149, 506 and 302/149 Indian Penal Code. vide Annexure No. 15 and 16. Hence this revision.