Allahabad High Court
Smt. Nanno And Another vs State Of U.P. And Another on 4 April, 2022
Bench: Manish Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 92
Case :- CRIMINAL REVISION No. - 2220 of 2021
Revisionist :- Smt. Nanno And Another
Opposite Party :- State of U.P. and Another
Counsel for Revisionist :- Shiv Prakash
Counsel for Opposite Party :- G.A.,Zafar Abbas
Hon'ble Manish Kumar,J.
The present revision has been preferred against the order dated 02.09.2021 passed by Additional District and Sessions Judge, court no. 3, Amroha (J.P. Nagar) in S.T. No. 321 of 2019, under Section 302 IPC, Police Station Hasanpur, District Amroha (J.P. Nagar) arising out of case crime no. 767 of 2018 exercising the jurisdiction under Section 319 Cr.P.C.
Learned counsel for the revisionist has submitted that the trial court has failed to appreciate that the revisionists were neither named in the FIR nor in the statements of the informant recorded under Sections 161 & 164 Cr.P.C. The name of the revisionists were surfaced for the first time in the statement of Kumari Nisha, who is alleged to be the only eye-witness of the incident. It is further submitted that in her statement, she had assigned the role of throttling against the co-accused Mahmood and Umar and role of catching hold was assigned against the co-accused Shoukin, Salman and Shahid and there is no specific allegation against the present revisionists. It is further submitted that the statement of the alleged eye-witness was recorded after two months of the incident after she was tutored by her nanihal side to give statement against the applicants. It is further submitted that in the post-mortem report, the hyoid bone of the deceased was intact. If about ten people were putting pressure on the neck of the deceased, the hyoid bone must have been broken. It is further submitted that from the panel report submitted by Doctors, the cause of death is uncertain.
On the other hand, Sri Zafar Abbas, learned counsel for the respondent no. 2 has submitted that the reason for recording the statement of Nisha, the eye-witness after two months has been explained in her statement. It is further submitted that bail had been granted by this Court to the co-accused Mahmood and Mohd. Umar @ Gatua against which a Special Leave to Appeal (crl.) No(s) 1438-1439/2021has been filed before Hon'ble the Supreme Court and Hon'ble the Supreme Court has cancelled the bail by placing reliance on the statement of the eye-witness Kumari Nisha, copy of the judgment/order of Hon'ble the Supreme Court has been enclosed as CA- 6 to the counter affidavit. It is further submitted that the post-mortem report; the statement of Kumari Nisha was after tutoring or not, are to be seen during the trial and by adducing evidence. It is further submitted that there is no illegality in the order dated 02.09.2021 passed by Additional District and Sessions Judge, court no. 3, Amroha (J.P. Nagar).
Learned AGA has submitted that these disputed questions of fact which could be adjudicated only after adducing the evidence. It is further submitted that this is not a stage where minute and meticulous exercise with regard to the appreciation of evidence may be done and truthfulness of the allegations could only be tested in a criminal trial and, therefore, the revision is misconceived as there is no illegality committed by the trial court in appreciating the evidence and is liable to be dismissed.
After hearing learned counsel for the parties and going through the record as well as the judgment of Hon'ble the Supreme Court in the case of Sheetala Prasad & Ors. vs. Sri Kant & Anr. [(2010 2 SCC 190], in which it has been held that the revisional jurisdiction can be exercised by the High Court; firstly, where the trial court has wrongly shut out evidence which the prosecution wished to produce; secondly, where the admissible evidence is wrongly brushed aside as inadmissible; thirdly, where the trial court has no jurisdiction to try the case and has still acquitted the accused and fourthly, where the material evidence has been overlooked either by the trial court or the order is passed by considering irrelevant evidence. The present case is not the case of the revisionist that the trial court has no jurisdiction to try the case and the order has been passed without appreciating the evidence, whereas in the present case, the material evidence i.e. the testimony of the sole eye-witness was considered and thereafter, the order dated 02.09.2021 has been passed. In the present case, it is found that there is a specific allegation of catching hold against the revisionist in the statement of the sole-eye witness (Kumari Nisha). The submission made by learned counsel for the revisionist drawing the attention of this Court and the panel report submitted by the team of Doctors will be seen during the trial by adducing evidence, especially under the circumstances when the bail granted to other co-accused persons have been cancelled by Hon'ble the Supreme Court by placing reliance on the statement of the eye-witness (Kumari Nisha).
For the facts and reasons discussed above and the law laid down by Hon'ble the Supreme Court, the revision is devoid of merit and hence, no interference is required.
The revision is accordingly dismissed.
Order Date :- 4.4.2022
Nitesh
