State of U.P. and Another v. Party

: Sriram Dhar Dubey : Rajesh Kumar Singh, G.A. Court No. - 86 HON'BLE NALIN KUMAR SRIVASTAVA, J.

1. This criminal revision has been preferred by the revisionists - Manish Kumar Rai and Vicky Rai @ Nitesh Rai with the prayer to set- aside the impugned order dated 16.05.2025 passed by the Additional Sessions Judge, Court No.1, Gorakhpur whereby the discharge application moved by the revisionists has been rejected in Session Trial No.1829 of 2024 (State Vs. Manish Rai and Another), arising out of Case Crime No.560 of 2024, under Section 105 B.N.S., Police Station Gola, District Gorakhpur.

2. Heard Sriram Dhar Dubey, learned counsel for the revisionists, Sri Rajesh Kumar Singh, learned counsel for the opposite party no.2 as well as the learned A.G.A. for the State and perused the entire record.

3. Admit.

4. The prosecution story, as culled out from the F.I.R., is that the present revisionists Manish Rai and Vicky Rai @ Nitesh Rai took Shashank Rai, the son of the informant with them and subsequently they committed murder of his son after administering liquor to him and thereafter he was thrown from the Chilwa Bridge. F.I.R. was lodged on 13.9.2024 at 18:00 hours and after investigation charge- sheet was submitted against the present revisionists to face trial under section 105 of B.N.S.

5. The learned trial court took the cognizance of the matter and date was fixed for framing of charge which was challenged by way of filing 2 CRLR No. 3296 of 2025 the present revision.

6. It is submitted by the learned counsel for the revisionists that the revisionists are innocent and have been falsely implicated in this case. It is further submitted that the impugned order has been passed upon wrong appreciation of evidence on record which was collected by the Investigating Officer during investigation of this case and against the settled legal norms as well. It is further submitted that the whole prosecution story is a bundle of false allegations. There was nothing on record to show the complicity of the revisionists in the alleged crime. It is also submitted that as a matter of fact, the vehicles of the revisionists met with an accident and on account of the said accident, the deceased fell down from the bridge and drown into the river. The revisionists also fell on the bank of the river from the bridge and got injuries in the same accident, but the informant of this case, with an ulterior motive, lodged the F.I.R. against the present revisionists. It is further submitted that the name of the revisionists was brought into this case only on the basis of suspicion. The autopsy report of the deceased also shows that the cause of death of the deceased was asphyxia due to ante-mortem drowning. It is also submitted that at the time of accident some passersby also came there and police was also called. The revisionists were sent to hospital by ambulance for medical treatment by the police.

7. It is also urged that the allegations made against the revisionists are that they called the deceased (son of the informant) from his house and since then he was missing but there is no convincing evidence available on record. The Investigating Officer, during the investigation, himself found two motorcycles on spot, out of which one was found almost in the middle of the Chilwa Bridge and the other motorcycle driven by the deceased fell down from the said bridge from the height of about 20 feet in the river. It is also submitted that the charge-sheet against the revisionists has been submitted by the Investigating Officer under Section 105 of B.N.S. whereas no offence was made out under the said provision. It is also submitted that the order passed by the learned Additional Session Judge, Court No.1, Gorakhpur dated 16.5.2025 is not legally sustainable. The learned court did not appreciate the pleas taken by the revisionists that it was not a case of murder but simply of an accident wherein the deceased died and one of the accused/revisionist also sustained serious injuries and was admitted in the hospital. It is also submitted 3 CRLR No. 3296 of 2025 that the revisionists are having no criminal history to their credit. The Investigating Officer has interrogated the material witnesses of this case belatedly which creates a doubt upon the truthfulness of the prosecution story. It is further submitted that two applications were given by the revisionists under section 240 B.N.S.S. for discharge and the learned trial court committed a grave legal error in rejecting both the applications 6Kha and 7 Kha.

8. Per contra, learned counsel for the opposite party no.2 and the learned A.G.A. vehemently opposed the present revision and impressed upon the findings of the Investigating Officer while submitting the charge-sheet in this matter. It has been submitted that the Investigating Officer has collected ample evidence and sufficient material against the present revisionists. It is also submitted that the framing of charge is one of the primary stages of the trial wherein the matter is not scrutinized on merits and only a prima facie case has to be seen by the trial court. Hence, a prayer for dismissal of the present revision has been made.

9. I have considered the rival submissions made by the learned counsel for the parties and have gone through the entire record including the impugned order.

10. In this matter, the Investigating Officer during the investigation interrogated many witnesses including the informant. The informant Dhananjay Rai has corroborated the F.I.R. version and it was submitted that on 12.9.2024 at about 16:00 hours in the early evening, Manish Rai and Vicky Rai @ Nitesh Rai, who are the named accused persons in this case, took his son Shashank Rai with them but he did not return and an application was given next morning on behalf of the informant in the police station. During search, in the evening of 13.9.2024, the dead body of Shashank Rai was found in the river under the Chilwa Bridge, who had sustained injuries. However, it was fairly conceded by the informant that the name of third accused Sunil Shukla son of Suraj Shukla was mentioned in the F.I.R. but now he has come to know that Sunil Shukla is not connected with this matter in any manner and he is innocent. The other witness Madan Mohan, who works at the Model Beer Shop & English Wine, has stated before the Investigating Officer that on 12.9.2024 at 9:45 p.m. in the night, four persons had come to his shop and the deceased was highly drunken at that time and they took 4 CRLR No. 3296 of 2025 wine in his shop. Other witness Karan states that when he was sleeping in the night of 12.9.2024, a noise was heard by him and when he reached Chilwa river he found one bullet motor-cycle lying on the Chilwa Bridge and the second motor-cycle was found lying beneath the Chilwa Bridge and one person was also lying there and one person who was drowning was saved by the villagers and the other who had fallen in the bushes was also rescued by the villagers. On their information, police came there and one of the person was sent to hospital by ambulance and the other person who was lying in the bushes was sent to his house along with some Dubeyji. The other witnesses Rajesh son of Nakhru and Mukesh son of late Sunil have repeated almost the same version of the story. Shashank, the son of the informant, was found dead. His dead body was sent for performing the postmortem. He had sustained six injuries upon his body, out of which three were found simple in nature caused by hard and blunt object. In the postmortem report, the cause of death of the deceased was found asphyxia due to ante-mortem drowning. It is pertinent to mention here that the doctor who performed the autopsy of the deceased nowhere mentioned that it was a case of accidental death. The present revisionists were also interrogated by the Investigating Officer wherein they confessed their guilt. It is also to be noted that all the three persons were in highly drunken state as per statement of witnesses under section 180 BNSS. The act of taking over the deceased from his house is well established and the father of the deceased has strongly averred this fact before the Investigating Officer. All the witnesses of fact, who were interrogated by the Investigating Officer as per material available on record, have corroborated the factum of taking liquor by the deceased and the revisionists which means that after taking away the deceased from his house at about 4:00 p.m., the deceased remained in the company of the revisionists.

11. The parameters for framing of charge and discharge are well settled by a catena of judicial precedents. The Hon'ble Supreme Court in the case of P. Vijayan vs. State of Kerala, (2010) 2 SCC 398 held that the Judge is not a mere post office to frame charge at the behest of the prosecution but has to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. In assessing this fact, it is not necessary for the court to enter into the pros and cons of the matter 5 CRLR No. 3296 of 2025 or into a weighing and balancing of evidence and probabilities which is really the function of the Court, after the trial starts.

12. In the case of Dilawar Balu Kurane vs. The State of Maharashtra, (2002) 2 SCC 135, the Hon'ble Apex Court observed that in exercising powers under Section 227 of the Criminal Procedure Code, 1973, the settled position of law is that the Judge while considering the question of framing the charge under the said section has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out and whether the materials placed before the Court discloses grave suspicion against the accused which has not been properly explained to the Court, then in such a case the Court will be fully justified in framing the charge and proceed with the trial. On the other hand, if the Judge is satisfied that the evidence produced before the Court gives rise to some suspicion but not grave suspicion then the Judge will be fully justified in discharging the accused.

13. It is trite law that at the stage of discharge of the accused, the Magistrate / Court dealing with the matter is required to apply his judicial mind only with a view to find-out as to whether prima-facie case has been made out against the accused or not. A co-joint reading of the judicial pronouncements passed in R.P. Kapur Vs. State of Punjab, A.I.R. 1960 S.C. 866, State of Haryana Vs. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar Vs. P.P.Sharma, 1992 SCC (Cr.) 192 and Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another, 2005 SCC (Cr.) 283 clarifies that the Court at the stage of framing of chage is not required to analyze the material on record to find-out as to whether the matter may lead to conviction or not. Sufficiency of materials for the purpose of conviction is not required. The Court / Magistrate is not required to analyze the evidence on merits but to scrutinize the evidence only with a view as to whether sufficient grounds exist to initiate criminal proceedings in respect of the offence which is said to have been committed .

14. In this matter, no evidence has been recorded before the trial court so far. Charge-sheet has been submitted by the Investigating Officer and cognizance has been taken by the court. The revisionists 6 CRLR No. 3296 of 2025 failed to show the fact that since the evening of 12.9.2024 upto the death of the deceased, the deceased did not remain in their company, whereas from the evidence collected by the Investigating Officer it is evident that the deceased was taken away from his house by the revisionists and he remained in their company till his death. The cause of death, according to the doctor who performed the autopsy, is asphyxia due to ante-mortem drowning and the doctor has also found certain injuries upon his body. The issues raised by the learned counsel for the revisionists are connected with the merits of this case which should / can not be considered at the stage of framing of the charge. The evidence has yet to start but at this juncture, the involvement and active participation of the revisionists in the commission of the crime is prima facie established on the basis of the ocular evidence, statement of other witnesses of fact and the medical evidence as well.

15. In the aforesaid circumstances, I am of the considered view that the court concerned did not err in rejecting the discharge application moved by the revisionists. There is no force in the submissions made by the learned counsel for the revisionists and the impugned order does not suffer from any illegality, infirmity or perversity. The prayer made in the revision is refused.

16. The present revision, being devoid of merits, is liable to be dismissed and the same is accordingly dismissed. September 9, 2025 (Nalin Kumar Srivastava,J.) SANDEEP SHARMA SANDEEP SHARMA High Court of Judicature at Allahabad High Court of Judicature at Allahabad

: Sriram Dhar Dubey : Rajesh Kumar Singh, G.A. Court No. - 86 HON'BLE NALIN KUMAR SRIVASTAVA, J.

1. This criminal revision has been preferred by the revisionists - Manish Kumar Rai and Vicky Rai @ Nitesh Rai with the prayer to set- aside the impugned order dated 16.05.2025 passed by the Additional Sessions Judge, Court No.1, Gorakhpur whereby the discharge application moved by the revisionists has been rejected in Session Trial No.1829 of 2024 (State Vs. Manish Rai and Another), arising out of Case Crime No.560 of 2024, under Section 105 B.N.S., Police Station Gola, District Gorakhpur.

2. Heard Sriram Dhar Dubey, learned counsel for the revisionists, Sri Rajesh Kumar Singh, learned counsel for the opposite party no.2 as well as the learned A.G.A. for the State and perused the entire record.

3. Admit.

4. The prosecution story, as culled out from the F.I.R., is that the present revisionists Manish Rai and Vicky Rai @ Nitesh Rai took Shashank Rai, the son of the informant with them and subsequently they committed murder of his son after administering liquor to him and thereafter he was thrown from the Chilwa Bridge. F.I.R. was lodged on 13.9.2024 at 18:00 hours and after investigation charge- sheet was submitted against the present revisionists to face trial under section 105 of B.N.S.

5. The learned trial court took the cognizance of the matter and date was fixed for framing of charge which was challenged by way of filing 2 CRLR No. 3296 of 2025 the present revision.

6. It is submitted by the learned counsel for the revisionists that the revisionists are innocent and have been falsely implicated in this case. It is further submitted that the impugned order has been passed upon wrong appreciation of evidence on record which was collected by the Investigating Officer during investigation of this case and against the settled legal norms as well. It is further submitted that the whole prosecution story is a bundle of false allegations. There was nothing on record to show the complicity of the revisionists in the alleged crime. It is also submitted that as a matter of fact, the vehicles of the revisionists met with an accident and on account of the said accident, the deceased fell down from the bridge and drown into the river. The revisionists also fell on the bank of the river from the bridge and got injuries in the same accident, but the informant of this case, with an ulterior motive, lodged the F.I.R. against the present revisionists. It is further submitted that the name of the revisionists was brought into this case only on the basis of suspicion. The autopsy report of the deceased also shows that the cause of death of the deceased was asphyxia due to ante-mortem drowning. It is also submitted that at the time of accident some passersby also came there and police was also called. The revisionists were sent to hospital by ambulance for medical treatment by the police.

7. It is also urged that the allegations made against the revisionists are that they called the deceased (son of the informant) from his house and since then he was missing but there is no convincing evidence available on record. The Investigating Officer, during the investigation, himself found two motorcycles on spot, out of which one was found almost in the middle of the Chilwa Bridge and the other motorcycle driven by the deceased fell down from the said bridge from the height of about 20 feet in the river. It is also submitted that the charge-sheet against the revisionists has been submitted by the Investigating Officer under Section 105 of B.N.S. whereas no offence was made out under the said provision. It is also submitted that the order passed by the learned Additional Session Judge, Court No.1, Gorakhpur dated 16.5.2025 is not legally sustainable. The learned court did not appreciate the pleas taken by the revisionists that it was not a case of murder but simply of an accident wherein the deceased died and one of the accused/revisionist also sustained serious injuries and was admitted in the hospital. It is also submitted 3 CRLR No. 3296 of 2025 that the revisionists are having no criminal history to their credit. The Investigating Officer has interrogated the material witnesses of this case belatedly which creates a doubt upon the truthfulness of the prosecution story. It is further submitted that two applications were given by the revisionists under section 240 B.N.S.S. for discharge and the learned trial court committed a grave legal error in rejecting both the applications 6Kha and 7 Kha.

8. Per contra, learned counsel for the opposite party no.2 and the learned A.G.A. vehemently opposed the present revision and impressed upon the findings of the Investigating Officer while submitting the charge-sheet in this matter. It has been submitted that the Investigating Officer has collected ample evidence and sufficient material against the present revisionists. It is also submitted that the framing of charge is one of the primary stages of the trial wherein the matter is not scrutinized on merits and only a prima facie case has to be seen by the trial court. Hence, a prayer for dismissal of the present revision has been made.

9. I have considered the rival submissions made by the learned counsel for the parties and have gone through the entire record including the impugned order.

10. In this matter, the Investigating Officer during the investigation interrogated many witnesses including the informant. The informant Dhananjay Rai has corroborated the F.I.R. version and it was submitted that on 12.9.2024 at about 16:00 hours in the early evening, Manish Rai and Vicky Rai @ Nitesh Rai, who are the named accused persons in this case, took his son Shashank Rai with them but he did not return and an application was given next morning on behalf of the informant in the police station. During search, in the evening of 13.9.2024, the dead body of Shashank Rai was found in the river under the Chilwa Bridge, who had sustained injuries. However, it was fairly conceded by the informant that the name of third accused Sunil Shukla son of Suraj Shukla was mentioned in the F.I.R. but now he has come to know that Sunil Shukla is not connected with this matter in any manner and he is innocent. The other witness Madan Mohan, who works at the Model Beer Shop & English Wine, has stated before the Investigating Officer that on 12.9.2024 at 9:45 p.m. in the night, four persons had come to his shop and the deceased was highly drunken at that time and they took 4 CRLR No. 3296 of 2025 wine in his shop. Other witness Karan states that when he was sleeping in the night of 12.9.2024, a noise was heard by him and when he reached Chilwa river he found one bullet motor-cycle lying on the Chilwa Bridge and the second motor-cycle was found lying beneath the Chilwa Bridge and one person was also lying there and one person who was drowning was saved by the villagers and the other who had fallen in the bushes was also rescued by the villagers. On their information, police came there and one of the person was sent to hospital by ambulance and the other person who was lying in the bushes was sent to his house along with some Dubeyji. The other witnesses Rajesh son of Nakhru and Mukesh son of late Sunil have repeated almost the same version of the story. Shashank, the son of the informant, was found dead. His dead body was sent for performing the postmortem. He had sustained six injuries upon his body, out of which three were found simple in nature caused by hard and blunt object. In the postmortem report, the cause of death of the deceased was found asphyxia due to ante-mortem drowning. It is pertinent to mention here that the doctor who performed the autopsy of the deceased nowhere mentioned that it was a case of accidental death. The present revisionists were also interrogated by the Investigating Officer wherein they confessed their guilt. It is also to be noted that all the three persons were in highly drunken state as per statement of witnesses under section 180 BNSS. The act of taking over the deceased from his house is well established and the father of the deceased has strongly averred this fact before the Investigating Officer. All the witnesses of fact, who were interrogated by the Investigating Officer as per material available on record, have corroborated the factum of taking liquor by the deceased and the revisionists which means that after taking away the deceased from his house at about 4:00 p.m., the deceased remained in the company of the revisionists.

11. The parameters for framing of charge and discharge are well settled by a catena of judicial precedents. The Hon'ble Supreme Court in the case of P. Vijayan vs. State of Kerala, (2010) 2 SCC 398 held that the Judge is not a mere post office to frame charge at the behest of the prosecution but has to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. In assessing this fact, it is not necessary for the court to enter into the pros and cons of the matter 5 CRLR No. 3296 of 2025 or into a weighing and balancing of evidence and probabilities which is really the function of the Court, after the trial starts.

12. In the case of Dilawar Balu Kurane vs. The State of Maharashtra, (2002) 2 SCC 135, the Hon'ble Apex Court observed that in exercising powers under Section 227 of the Criminal Procedure Code, 1973, the settled position of law is that the Judge while considering the question of framing the charge under the said section has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out and whether the materials placed before the Court discloses grave suspicion against the accused which has not been properly explained to the Court, then in such a case the Court will be fully justified in framing the charge and proceed with the trial. On the other hand, if the Judge is satisfied that the evidence produced before the Court gives rise to some suspicion but not grave suspicion then the Judge will be fully justified in discharging the accused.

13. It is trite law that at the stage of discharge of the accused, the Magistrate / Court dealing with the matter is required to apply his judicial mind only with a view to find-out as to whether prima-facie case has been made out against the accused or not. A co-joint reading of the judicial pronouncements passed in R.P. Kapur Vs. State of Punjab, A.I.R. 1960 S.C. 866, State of Haryana Vs. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar Vs. P.P.Sharma, 1992 SCC (Cr.) 192 and Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another, 2005 SCC (Cr.) 283 clarifies that the Court at the stage of framing of chage is not required to analyze the material on record to find-out as to whether the matter may lead to conviction or not. Sufficiency of materials for the purpose of conviction is not required. The Court / Magistrate is not required to analyze the evidence on merits but to scrutinize the evidence only with a view as to whether sufficient grounds exist to initiate criminal proceedings in respect of the offence which is said to have been committed .

14. In this matter, no evidence has been recorded before the trial court so far. Charge-sheet has been submitted by the Investigating Officer and cognizance has been taken by the court. The revisionists 6 CRLR No. 3296 of 2025 failed to show the fact that since the evening of 12.9.2024 upto the death of the deceased, the deceased did not remain in their company, whereas from the evidence collected by the Investigating Officer it is evident that the deceased was taken away from his house by the revisionists and he remained in their company till his death. The cause of death, according to the doctor who performed the autopsy, is asphyxia due to ante-mortem drowning and the doctor has also found certain injuries upon his body. The issues raised by the learned counsel for the revisionists are connected with the merits of this case which should / can not be considered at the stage of framing of the charge. The evidence has yet to start but at this juncture, the involvement and active participation of the revisionists in the commission of the crime is prima facie established on the basis of the ocular evidence, statement of other witnesses of fact and the medical evidence as well.

15. In the aforesaid circumstances, I am of the considered view that the court concerned did not err in rejecting the discharge application moved by the revisionists. There is no force in the submissions made by the learned counsel for the revisionists and the impugned order does not suffer from any illegality, infirmity or perversity. The prayer made in the revision is refused.

16. The present revision, being devoid of merits, is liable to be dismissed and the same is accordingly dismissed. September 9, 2025 (Nalin Kumar Srivastava,J.) SANDEEP SHARMA SANDEEP SHARMA High Court of Judicature at Allahabad High Court of Judicature at Allahabad