SHEKHAR Vs. STATE OF U P

JUDGEMENT

(1.) THIS appli cation has been moved by the applicants, Shekhar, Achhaibar and Manka with a prayer to quash the proceedings of com plaint case No. 3136 of 2001 (Nirmal v. Vindhyachal and others) under sections 147, 148, 149, 304 of I.P.C., Police Station Kotwali, District Deoria pending in the Court of learned Chief Judicial Magistrate, Deo ria.

(2.) THE facts in brief of this case are that the complaint dated 18.2.1984 has been filed by O.P. No. 2 in the Court of learned Chief Judicial Magistrate concerned, alleging therein that he was married with Smt. Sonia, from their wedlock, a male child namely Bacchan was born, who was aged about 2.0 years on the day of alleged inci dent dated 26.11.1982. THE complainant was ailing, due to which his wife started to lead an adulterous life and she performed her re-marriage with a person residing in village Arila where she remained for some period, thereafter, she again re-married with a person residing in village Amit- heen. THE accused Jamuna Tiwari is resi dent of village Amit-heen, he is having his relation with Vindhyachal Misra, residing in the same village of the complainant, all the accused persons were pressurising the first informant and his son Bacchan for keeping the wife at their house, for which the complainant and his son Bacchan were not agreed. THE wife of the complainant was kept at his house by the accused appli cant Achhaibar, due to this enmity, on 26.11.1982 at about 11.0 a.m., the applicants and other co-accused persons have beaten the deceased Bachhan by using lathi, kicks and fists blows, consequently, he became unconscious, when the complainant came to his house after pulling rickshaw, he provided medical aid to his injured son, on the next day of the alleged incident, the deceased Bachhan was brought to the dis trict hospital where he was admitted but unfortunately on 29.11.82 at about 2.00 p.m., he succumbed to his injuries whose post-mortem examination report was con ducted on 30.11.1982, its FIR was lodged but under the influence of the accused per sons, the I.O. submitted the final report. THEreafter, the complaint of the present case has been lodged by O.P. No. 2, the statement of O.P. No. 2 was recorded un der section 200 Cr.P.C. and the statement of PW 1 Sattraj, PW 2 Sanichari, PW 3 Harish, PW 4 Kaiphulwara were recorded under section 202 Cr.P.C., a copy of the post mortem examination was filed as documentary evidence, after considering the same, the learned Additional Civil Judge (Junior Division)/Judicial Magistrate, Deoria summoned the applicants on 5.4.1999 to face the trial for the offences punishable under sections 147, 149, 304 I.P.C. Being aggrieved from the order dated 5.4.1999, the present application has been filed by the applicants with a prayer to quash the proceedings against them pending in complaint Case No. 3136 of 2001.

(3.) IN reply to the above contentions, it is submitted by the learned A.G.A. and learned Counsel for the O.P. No. 2 that in the present case, the FIR was lodged but under the influence of the applicants and co- accused persons, the I.O. submitted the final report without doing the proper in vestigation, the O.P. No. 2 lodged com plaint when he came to know that the I.O. has submitted the final report. Thereafter, the statements under sections 200 and 202 Cr.P.C. have been recorded. After considering the same, the learned Magistrate con cerned has taken the cognizance and sum moned the applicants to face the trial be cause on the basis of the allegations made against the applicants, prima facie, offence under sections 147, 149 and 304 I.P.C. is made out. There is no Illegality in the prosecution of the applicants, therefore, prayer for quashing the proceedings of the complaint case may be refused.