Ravindra Singh, J. - (1.) THIS appli cation has been filed by the applicant Ra jendra Tiwari with a prayer to quash the charge- sheet dated 31.3.2009 in case crime No. 98 of 2008 under section 302 I.P.C. and section 3(2)(v) of SC/ST Act P.S. Marihan District Mirzapur pending in the Court of learned C.J.M. Mirzapur vide criminal case No. 29712 of 2009.
(2.) THE facts of the case in brief are that the F.I.R. of this case has been lodged by O.P. No. 2 Daya Ram Sonkar on 8.3.2008 at 7.10 am in case crime No. 98 of 2008 against the applicant and two other co- accused per sons alleging therein that on account of old enmity and litigation, the mother of the first informant namely Smt. Mahdei aged about 85 years has been killed, after investigation the I.O. submitted the charge-sheet against the applicant, co-accused Deena Teli and co-accused Piyari Devi under section 302 I.P.C. and section 3(2)(v) of SC/ST Act on which the learned Magistrate concerned has taken cognizance and summoned the applicant to face the trial. Heard Sri Arvind Srivastava, learned Counsel for the applicant, learned A.G.A. for the State of U.P. It is contended by the learned Counsel for the applicant that during in vestigation no cogent material has been collected disclosing prima facie the offence against the applicant, the first informant himself saw the dead body of the deceased, he is not eye witness, it is alleged that the applicant and other co- accused persons were seen by Sri Musey and Sri Mahendra in the night. The I.O. of this case namely Sri O.P. Rai, had demanded money from the applicant, which was not paid by him, that is why charge-sheet has been submitted, at the time of the alleged incident the applicant was not present at the place of occur rence, he was present in the marriage ceremony of Sri Tinku son of Jata Shanker Pandey, in another village which is evident from the Video recording even during in vestigation it was found that the applicant was present in the above mentioned mar riage party but the investigation was trans ferred to Sri Radha Krishna, Circle Officer. Chunar. The Circle Officer recorded the statement of Daya Ram Sanker, Smt Munra Devi and Smt Shanti Devi, on 6.5.2008 the I.O. perused seven affidavits in which it was mentioned that on the date of the inci dent, the applicant was not present in vil lage Kalwari Khurd but was present in a marriage at Chilla. The witness Panna Lal also stated that he had seen the applicant on the date of the incident. The statement of Mahednra Sankar was recorded on 12.5.2008 who stated that he never met the applicant Deena Teli or Pyari Devi. Some other persons namely Ganesh Pandey, Ram Pal Singh, Kapil Muni Misra, Udai Pal Singh, who stated before the I.O. on 7.3.2008 that the applicant was present in the marriage party of Tinku. The statement of Mahendra Sonkar under section 161 Cr.P.C. was recorded on 14.5.2008 who stated that he had not seen anything on 7.3.2008. The affidavits of Krishna Mohan Tripathi and Narendra Pratap Gupta have been filed in support of the application, Sri Rajveer Koak stated that Daya Ram Sanker, Babu Lal Sonkar and Sri Nanku alias Kalla Rai Sonker had murdered his mother. Smt. Kaushalya Devi, Smt. Jamuna Harijan cate gorically stated that the applicant was in nocent. The witness Sri Ajai Kumar Gupta, Shiv Bahadur, Sri Shanker, Sri Paras Bind, Sri Bahadur Yadav stated that the applicant was present in the marriage party, the statement of Sri Musey was recorded on 18.5.2008, he has stated that he had very weak eye sight. The statement of Rajvir was recorded under section 161 Cr.P.C. who stated that Daya Ram Sonker, Babu Ram Sonker and Nanku alias Kalla Rai Sonker had killed his mother. In the present case the applicant is innocent but under the influence of a Min ister who is helping Daya Ram to save him, the charge-sheet has been submitted against the applicant. The applicant has been falsely implicated at the instance of the M.L.A., Anil Maurya and Naresh Bind, the proceedings initiated against the appli cant is gross abuse of the process of law and full of mala fide, the same may be quashed.
(3.) IN reply to the above contention it is submitted by the learned A.G.A. that in the present case on the basis of the material collected by the I.O. charge-sheet has been submitted, the charge-sheet is containing the list of witnesses in which the name of 15 persons have been mentioned. There is fresh material on the record, which dis closes the commission of the offence on which the proper prosecution can be made. There is no illegality in the submission of the charge-sheet and there is no illegality in taking cognizance by the leaned Magistrate concerned. So far as the ground taken by the applicant in respect of alibi, it may be considered at the stage of the trial and other submissions made by the learned Counsel for the applicant regarding contradiction in the statement of the witnesses or of mala fide, can be taken by the appli cant in defence at the stage of the trial, at this stage all these ground are not material for quashing the charge-sheet. Therefore, the prayer for quashing the charge-sheet may be refused. Considering the submission made by the learned Counsel for the applicant; the learned A.G.A. for the State of U.P. and from the perusal of the record in the pres ent case, the F.I.R. has been lodged by O.P. No. 2 in which the applicant is named as an accused during investigation, the I.O. has recorded the statement of the witnesses disclosing the participation of the applicant in the commission of the alleged offence, the charge-sheet has been submitted by the I.O. is not suffering from any illegality and no error has been committed by the learned Magistrate concerned in taking cognizance on the charge-sheet submitted by the I.O. So far as the plea of alibi is concerned, it may be taken by the applicant at the time of the trial at the defence. So far as the con tradictions in the statement of the witnesses are concerned, the same cannot be consid ered at this stage for the purpose of quash ing the proceedings, the same may be cross-examined with the witness at the stage of the trial. There is no illegality in the charge- sheet dated 31.3.2008. There is no illegality in the prosecution of the applicant, therefore, the prayer for quashing the charge-sheet as well as the criminal proceedings of the above mentioned case is refused.;