Sagir Ahmad vs The State Of U.P. And Another
2022 Latest Caselaw 1450 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

							A.F.R.
 

 
Reserved on: 05.04.2022
 
                                                                       Delivered on: 26.04.2022
 
Court No. - 16
 

 

 
Case :- CRIMINAL REVISION No. - 189 of 2014
 

 
Revisionist :- Sagir Ahmad
 
Opposite Party :- The State Of U.P. And Another
 
Counsel for Revisionist :- Arun Sinha,Siddhartha Sinha
 
Counsel for Opposite Party :- Govt. Advocate
 

 
Hon'ble  Brij Raj Singh,J.

1. Heard Sri Arun Sinha, learned counsel for the revisionist and Sri Anurag Verma, learned AG.A. for the State and perused the record.

2. This Criminal Revision has been filed against the judgment and order dated 11.04.2014 passed by Additional Sessions Judge, Court No.8, Sitapur in Case S.T. No.772/2009, State versus Mainul Haq and others,arising out of Case Crime No.534/2009, Under section 302, 120-B I.P.C., Police Station- Khairabad, District-Sitapur, summoning the revisionist as accused under Section 319 Cr.P.C. to face trial under Section 302/120-B I.P.C. Further prayer has been made that the proceeding of the case may be stayed during the pendency of the present revision.

3. The complainant had moved an application on 11.04.2012 to summon the accused-revisionist in proceedings under Section 319 Cr.P.C. In the said application, the complainant submitted that the revisionist was named in the F.I.R. In the complaint, it is also alleged that there was dispute of land property in between Azra Rizvi and Sagir Ahmad(revisionist) and her husband was threatened by the revisionist. It is further alleged in the application that in her cross examination before the trial court, she stated that when her husband went out from her house, she rang her husband after twenty minutes, who told her that Azra Rizvi, Sagir, Mainul Haq and 2-4 other persons were sitting with him. She further stated that it was the last seen evidence and on the basis of the said happening, the F.I.R. was lodged, but the police did not file chargesheet against the accused. It is further stated that the complainant (P.W. 1) and P.W.3-Misbahul Hasan have been cross examined and during the cross examination, P.W. 1 and P.W.-3 have specifically named the accused-revisionist. Therefore, he should be summoned and trial should be done.

4. The court below passed the impugned order dated 11.04.2014, by which the accused revisionist has been summoned, which has been challenged by the accused in present revision.

5. Learned counsel for the revisionist has submitted that the charge-sheet was filed against the accused, who committed the offence. It has been further submitted that there was no complicity for the offence found against the revisionist and, therefore, charge sheet was not filed against him, rather the chargesheet was filed against Mainul Haq s/o Ainul, Zahid s/o Munne Khan and Zunaid s/o Shoaib Ahmad. He further submitted that even if the statement of P.W. 1 and P.W. 3 are taken into consideration, no offence is made out because no evidence had been produced by them which indicates that the revisionist is involved in commission of offence. He has further submitted that P.W.1 has specifically mentioned the names Sagir s/o Munne Khan in the F.I.R. as well as in the statement but the revisionist is Sagir s/o Ali Ahmad and without ascertaining the parentage of the revisionist, the impugned order has been passed.

6. In support of his argument, he placed reliance on the judgment of the Hon'ble Supreme Court in the case of Anjan Kumar Sarma versus State of Assam; (2017) 14 SCC 359, Brijendra Singh and others versus State of Rajasthan; (2017) 7 SCC 706, Arjun Marik and others versus State of Bihar; 1994 Supp.(2) SCC 372, Hardeep Singh versus State of Punjab;(2014) 3 SCC 92 and one judgment passed by this Court in Application under Section 482 bearing No.6936 of 2019(Ravindra Nath Mishra versus State of U.P.).

7. Learned counsel for the revisionist further submitted that the parentage of the revisionist is Sagir s/o Ali Ahmad, whereas P.W.1 has stated the revisionist as Sagir son of Muneer. The parentage of the revisionist has neither been identified nor verified and the name mentioned by P.W.1 is different because as per version of P.W.1 the accused is Sagir s/o Muneer. The statement of P.W.1 is annexed at page 44 of the paper book, which clearly indicates that the accused is Sagir s/o Muneer, whereas the application has been made against the accused whose name is Sagir, however, the father's name of the revisionist is Ali Ahmad.

8. Per contra, learned A.G.A. has invited the attention of this Court towards the F.I.R. in which the revisionist Sagir has been named. He has further submitted that from the statements and cross examination of P. W. -1 and P.W. 3, it is quite evident that the revisionist has committed the offence. In her statement, P.W.1 has stated that her husband got a call at 9:00 p.m. in the night. On asking as to who called him, he told to his wife Smt. Sabira(complainant) that Mainul Haq s/o Ainul Haq called him at temple situated at Moti Jheel. After 20 minutes from his departure, she called her husband on phone who told her that he was in the company of Azra Rizvi, Sagir, Mainul Hasan and 2-4 other persons and thereafter phone was disconnected. It is further submitted by learned counsel for the State that P.W. 3 Misbahul Hasan, the brother of the deceased also narrated the same fact as stated by P.W. 2. He also deposed before the court below that he was standing at the gate of his house and saw a white car standing in front of the house in which Sagir, Zunaid and Mainul Haq were sitting.

9. Learned A.G.A. while relying on the judgment of the Hon'ble Supreme Court in the case of Sartaj Singh versus State of Haryana and another; (2021) 5 SCC 337 and Dev Wati and others versus State of Haryana and others;2019(195) AIC 225(S.C.) submitted that the Hon'ble Supreme Court has discussed the scope of Section 319 Cr.P.C and held that though only a prima facie case is to be established from the evidence led before the court, not necessarily tested on the anvil of cross-examination, it requires much stronger evidence than mere probability of complicity of the persons against whom the court proceeds.

10. I have heard submissions of learned counsel for the parties and perused the record.

11. It is mentioned that when the case was investigated, the charge sheet was filed against three accused persons namely Azra Rizvi, Sagir, Mainul Hasan and the revisionist was not charge sheeted. The I.O. had recorded the evidence and weapon and after recording the statement, three persons, who committed the offence were charge-sheeted. Since the revisionist was not found in the complicity of the offence in any manner, therefore, the charge sheet was not filed. P.W. 1 and P.W. 3 have given statement before the court below during the examination-in-chief as well as cross examination, wherein they have mentioned that the revisionist might have committed the offence because before two months from the date of incident, he had threatened the deceased. P.W.3 also stated that he had seen the revisionist sitting in car in front of his house alongwith other persons, but no other act of commission of offence is mentioned by him. The accused Mainul s/o Ainul Haq confessed the offence and Banka(tabli) was recovered on his pointing out. The other associate Zunaid and Zahid were also involved in the crime against whom a charge-sheet was filed.

12. This Court has to see whether from the entire material available in the charge-sheet as well as in statement made by the prosecution witnesses, any offence is made out or any act of commission can be attributed.

13. The Hon'ble Supreme Court has considered the aforesaid aspect in various cases. The last seen evidence has been discussed in the case of Anjan Kumar Sarma(supra), in which, it has been held that in absence of proof or other circumstances, the only circumstance of last seen together and absence of satisfactory explanation, cannot be a ground for conviction. Further in the case of Brijendra(supra), which is a matter pertaining to Section 319 Cr.P.C., the Hon'ble Supreme Court has laid parameter in Para 14 and 15 of the decision. The Supreme Court has observed that the evidence recorded during the trial should be credible for commission of offence. Once the I.O. had collected the plethora of evidence and there is no act of commission of offence found against the person the trial court was at least duty bound to look into the same while forming opinion to summon. The relevant paragraph 14 and 15 are quoted below:

"14. When we translate the aforesaid principles with their application to the facts of this case, we gather an impression that the trial court acted in a casual and cavalier manner in passing the summoning order against the appellants. The appellants were named in the FIR. Investigation was carried out by the police. On the basis of material collected during investigation, which has been referred to by us above, the IO found that these appellants were in Jaipur city when the incident took place in Kanaur, at a distance of 175 km. The complainant and others who supported the version in the FIR regarding alleged presence of the appellants at the place of incident had also made statements under Section 161 Cr.P.C. to the same effect. Notwithstanding the same, the police investigation revealed that the statements of these persons regarding the presence of the appellants at the place of occurrence was doubtful and did not inspire confidence, in view of the documentary and other evidence collected during the investigation, which depicted another story and clinchingly showed that appellants plea of alibi was correct.

15. This record was before the trial court. Notwithstanding the same, the trial court went by the deposition of complainant and some other persons in their examination-in-chief, with no other material to support their so- called verbal/ocular version. Thus, the "evidence" recorded during trial was nothing more than the statements which were already there under Section 161 Cr.P.C. recorded at the time of investigation of the case. No doubt, the trial court would be competent to exercise its power even on the basis of such statements recorded before it in examination-in-chief. However, in a case like the present where plethora of evidence was collected by the IO during investigation which suggested otherwise, the trial court was at least duty bound to look into the same while forming prima facie opinion and to see as to whether much stronger evidence than mere possibility of their (i.e. appellants) complicity has come on record. There is no satisfaction of this nature. Even if we presume that the trial court was not apprised of the same at the time when it passed the order (as the appellants were not on the scene at that time), what is more troubling is that even when this material on record was specifically brought to the notice of the High Court in the Revision Petition filed by the appellants, the High Court too blissfully ignored the said material. Except reproducing the discussion contained in the order of the trial court and expressing the agreement therewith, nothing more has been done. Such orders cannot stand judicial scrutiny."

14. Similarly paragraph 31 of the case of Arjun Marik(supra) is also relevant to be seen, which is quoted below:

"31. Thus the evidence that the appellant had gone to Sitaram in the evening of 19-7-1985 and had stayed in the night at the house of deceased Sitaram is very shaky and inconclusive. Even if it is accepted that they were there it would at best amount to be the evidence of the appellants having been seen last together with the deceased. But it is settled law that the only circumstance of last seen will not complete the chain of circumstances to record the finding that it is consistent only with the hypothesis of the guilt of the accused and, therefore, no conviction on that basis alone can be founded."

15. After looking into the material available on record, I found that the court below has not taken into consideration the other circumstances and material available before him collected by the I.O. and passed the order only on the basis of the statement of P.W. 1 and P.W. 3 which is not proper course. The trial court has also not verified/ identified the parentage of the revisionist whose father is Ali Ahmad whereas P.W. 1 has categorically stated in the examination-in-chief that the name of the accused is Sagir s/o Muneer, which is also to be enquired by the court below.

16. In view of the aforesaid discussion, I set aside the impugned order dated 11.04.2014 and remand the matter to the court below, who will pass fresh order within four months from today keeping in view the observations made hereinabove.

17. The revision is accordingly allowed. No order as to costs.

18. Office is directed to communicate this order to the court below for necessary compliance, forthwith.

Order Date :-26.04.2022

Arun K. Singh/Akanksha

(Brij Raj Singh, J.)