Allahabad High Court
Zaferyab Ahmad vs State Of U.P. on 31 October, 2012
Bench: Aditya Nath Mittal
HIGH COURT OF JUDICATURE AT ALLAHABAD
?AFR
Court No. - 13
Case :- CRIMINAL REVISION No. - 1171 of 2010
Petitioner :- Zaferyab Ahmad
Respondent :- State Of U.P.
Petitioner Counsel :- A. Kumar Srivastava
Respondent Counsel :- Govt. Advocate
Hon'ble Aditya Nath Mittal,J.
List has been revised. None present for the revisionist.
This criminal revision has been filed against the order dated 9.2.2010 passed by Special Judge/Additional Sessions Judge, Bijnor in S.T. No.415 of 2005, under Sections 302, 120-B I.P.C., P.S. Kotwali Shahar, District Bijnor, by which the application under Section 311 Cr.P.C. has been rejected.
The grounds taken in the revision are that the impugned order is unjust, improper and arbitrary. The court below has not considered the weight of evidence. The prosecution has the power to adduce the evidence and the court below has not called the opinion of the expert to examine the C.D.
Heard learned A.G.A. and perused the impugned order.
Under Section 311 of Cr.P.C., the court may at any stage of enquiry, trial or other proceedings, summon any person as witness or may recall or re-examine any such person if it appears to be essential to just decision of the court.
In the present case, it is alleged that Irfan son of Iftakhar had prepared a C.D. in which accused Shakir Ali had confessed his guilt in presence of witnesses Aftab Ahmad and Intasar Ahmad. The application under Section 311 Cr.P.C. was rejected at the first instance but the complainant filed Criminal Revision No.1586 of 2009 before this Court in which it was directed that the Court was required to see as to whether the proposed evidence was essential for the just decision of the case or not and on this parameter the application should have been decided and because this parameter was not used by the trial court while deciding the application hence the order of the trial court is improper and was quashed. The matter was sent back to the trial court for deciding the application as fresh.
In this case, the prosecution evidence was concluded on 7.1.2009 and after that 20 adjournments were taken by the prosecution and after taking these 20 adjournments, the alleged C.D. was produced before the trial court.
Learned trial court has himself examined the said C.D. on a Laptop in presence of counsel for both the parties and has come to the conclusion that the picture and voice of the C.D. is blurred and the voice was not connectable with the picture of accused and accordingly the court came to the conclusion that proposed evidence was not essential for the just decision of the case and accordingly dismissed the application.
It is relevant to mention that the trial court has mentioned in its previous order that why this fact was not disclosed to the court earlier that till now what was the status of the alleged C.D. and when the complainant received the said C.D.
Admittedly, the alleged C.D. was not the part of investigation and moreover it is also relevant to mention that the complainant alleges the confessional statement of the accused in presence of two witnesses. It is settled law that in heinous crimes like offences punishable under Section 302 I.P.C., the accused cannot be convicted solely on the ground of confession unless that is corroborated by substantial piece of evidence. In the present case the evidence of the prosecution has concluded on 7.1.2009 and the case is fixed for arguments in which the prosecution has already sought 20 adjournments. In these circumstances, the effort of the prosecution do not appears to be bonafide and it appears that this so called C.D. has been prepared just to delay the proceedings of the case.
In the circumstances, there is no error of law in the impugned order and there is no sufficient ground to interfere with the impugned order. The revision is dismissed.
Order Date :- 31.10.2012
Kpy
