Ravindra Singh, J. - (1.) THIS appli cation has been filed by the applicant Tej Vir Singh, Sub-Inspector, Constable C.P. No. 221 Amar Singh and Constable C.P. No. 06 Dori Lal with a prayer to quash the charge-sheet of case crime No. 489 of 2004 under sections 147, 148, 149, 304 I.P.C. and 3(2)(V) of S.C./S.T. Act, P.S. Veesalpur, District Pilibhit and summoning order dated 20.10.2008 passed by learned C.J.M. Pilibhit in Criminal Case No. 4496 of 2008.
(2.) THE facts in brief of this case are that the FIR of this case has been lodged by O.P. No. 2 Rameshwar Dayal on 6.8.2004 at 3.30 p.m. at P.S. Veesalpur in respect of the incident which had occurred on 3.8.2004 at about 8.00 p.m, the FIR was lodged against the applicants, the allegations against them are that they caused the injuries on the per son of the deceased Smt. Dharmawati by using kicks, fists and butt of the gun. Ac cording to the post-mortem examination report, the deceased had sustained abraded contusion 5 cm. x 4 cm. on right side face involving to right eye brow and near to right eye as ante-mortem injury, the cause of death could not be ascertained hence viscera was preserved, according to the viscera report, no poison was found, the investigation of this case has been done by C.B.C.I.D., who submitted the charge-sheet dated 1.10.2008 in the Court of learned Magistrate concerned on which learned Magistrate concerned has taken the cogni zance, summoned the applicants on 20.10.2008. Being aggrieved from the charge-sheet dated 1.10.2008 and the order of the cognizance dated 20.10.2008, this applica tion has been filed by the applicants with a prayer to quash the same by way of invok ing inherent powers conferred under section 482 Cr.P.C. Heard Sri V.P. Srivastava, learned Senior Advocate, assisted by Sri Lav Srivastava, Sri V.K. Misra, learned Counsel for the applicants and learned A.G.A. for the State of U.P.
(3.) IT is contended by learned Counsel for the applicants that on the day of the alleged incident, the applicant Tej Vir Singh was posted as sub-inspector and applicant Nos. 2 and 3 were posted as con stables at P.S. Veeslpur district Pilibhit. Ac cording to the FIR itself, the daughter of one Chhotey Lal had gone in the company of his son in law's brother Mahendra Pal, on the basis of doubt and suspicion, Chhotey Lal brought the police personnel at the house of the first informant on 3.8.2004 at about 9.0 o'clock, at that time, the first in formant was not present at his house, the police personnel did the marpeet to know whereabout of Chnotey Lal's daughter, it was replied by the wife of the first infor mant that the daughter of Chhotey Lal was not at her house then the applicant Tej Vir Singh, applicant Amar Singh and five other police constables and Chhotey Lal beaten the deceased by using the kicks, fists and butt of the guns, as a result of which she died. The first informant got its information then he came to his house and saw his wife as dead and due to fear, the first informant did not go to the police station, Veesalpur, he went to office of S.P. Pilibhit where he handed over the FIR, the FIR itself is indi cating that the applicants have gone to the house of the deceased in search of a kid napped girl. The applicants were discharg ing their official duty and its entry has been made by the applicants in G.D. also, the applicants are innocent, they have not caused any injury on the person of the de ceased, the inquest report of the deceased was prepared on 4.8.2004 on the basis of information given by O.P. No. 2, but it is surprising that no, FIR was lodged at P.S. concerned. The first informant is the wit ness in the inquest report, but according to the opinion of the witnesses of the inquest, the cause of death was not known. IT was prepared in the presence of Naib Tehsildar, it shows that after great thought and con sultation the FIR of this case has been lodged in which the applicant Nos. 1 and 2 were named and after investigation, the charge-sheet has been submitted against applicant No. 3 also who is not named in the FIR. It is further contended that the prosecution story is not corroborated with the medical report. According to the post mortem examination report, the deceased had sustained only one ante-mortem injury i.e. abraded contusion on right side face involving to right eye brow and near to right eye, due to this injury, no internal damage was found, but it was not cause of death. The cause of death could not be as certained, hence viscera was preserved, the position of lungs show that both were shrunken not easily detachable, it shows that the deceased died due to some other reason because, in viscera report also no poison was found and an application was moved on 23.7.2004 by Chhotey Lal and his wife Chandra kali before Chauki Incharge Kotwali veesalpur in respect of kidnapping of their daughter Rajo Devi in which Mahendra Pal son of Mangal Singh was ac cused. Mahendra Pal Singh is brother of the deceased, the kidnapped girl Rajo Devi had lived for about 15 days in her house, after getting its information, the applicant No. 1 was directed by Chauki Incharge to take the necessary action in the matter whereas the area concerned was not in the charge of applicant No. 1, he made humble protest but ultimately, he had to move for the action. In the morning of the said inci dent, the applicant conducted a raid in search of hard core criminals who were wanted under section 395/412 I.P.C. and were hiding themselves in the same area/village, the applicant came to the house of O.P. No. 2 where O.P. No. 2 was not available, the wife of O.P. No. 2 was available but she could not disclose the where about of Mahendra Pal, they did not assault the deceased even they were not having any knowledge about the death of the deceased but in this case the matter was investigated by C.B. CID and without do ing fair investigation, the charge-sheet has been submitted, in the present case, magis terial inquiry was also conducted by Sub-Divisional Magistrate in which it was found that the death of the deceased was natural, it had not occurred due to beating, some of the villagers filed their affidavits in support of the applicants. According to G.D. rapat No. 54 dated 3.8.2004 at 19.45 Hours, the applicants had left the police station for conducting the inquiry in re spect of an application moved by Chhotey Lal, the applicants are entitled to get benefit of section 197 Cr.P.C.;