Allahabad High Court
Mohammad Yaseen vs State Of U.P. And Another on 10 October, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2025:AHC:181127
HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL REVISION No. - 2090 of 2022
Mohammad Yaseen
.....Revisionist(s)
Versus
State of U.P. and Another
.....Opposite Party(s)
Counsel for Revisionist(s)
:
Gaurav Kumar Shukla, Vishveshwar Mani Tripathi
Counsel for Opposite Party(s)
:
G.A., Praveen Kumar Singh, Syed Imran Ibrahim
Court No. - 92
HON'BLE CHAWAN PRAKASH, J.
1. Heard Mr. Gaurav Kumar Shukla, learned Counsel for the revisionist, Mr. Prakahar Mishra, learned Counsel holding brief of Mr. Syed Imran Ibrahim, learned Counsel for opposite party no.2 and learned A.G.A. on behalf of the State.
2. Admit.
3. This revision has been filed against the order dated 21.02.2022, passed by the Additional Sessions Judge/Special Judge (POCSO Act), Sant Kabir Nagar, in S.T. No. 142 of 2021, State v. Liyakat Ali and others, arising out of Case Crime No. 612 of 2011, under Sections 147, 148, 323, 324, 325, 308 and 506 I.P.C. P. S. Dudhara, District Sant Kabir Nagar whereby the application filed by the revisionist under Section 319 Cr.P.C. has been dismissed.
4. The prosecution case, in short, is that an F.I.R was registered as Case Crime No. 612 of 2011, under Sections 147, 148, 323, 324, 325, 308 and 506 I.P.C. P.S. Dudhara, District Sant Kabir Nagar against seven persons namely Liyakat, Mofid, Lori, Barakat, Mohd. Yakoob, Samad and Sher Ali. The statement of prosecution witnesses were recorded under Section 161 Cr.P.C. and after completion of investigation, charge-sheet was filed only against four persons namely Barkat Ali, Mohd. Yakoob, Samad and Sher Ali. During trial, statement of P.W-1 Ali Raza, P.W.-2 Anwar and P.W.-3 Sarvar Ali were recorded and they were duly cross-examined by the accused persons. After that, application under Section 319 Cr.P.C. was submitted by informant Ali Raza to summon proposed accused Mofid for facing trial but the said application was dismissed by the concerned Trial Court on 21.12.2022.
5. Learned Counsel for the revisionist submits that learned Trial Court has dismissed the application under Section 319 Cr.P.C. only on the ground that the medical report of Smt. Kusnain is prior to the date of incident. The incident took place on 30.07.2022 but, by a human error, the date on medical report was wrongly mentioned as 29.07.2022. It is further submitted that P.W-1 Ali Raza, P.W.-2 Anwar and P.W.-3 Sarvar Ali have categorically supported the prosecution case. He further submits that the opposite party no.2 is named in the F.I.R. The Trial Court erred in not summoning the proposed accused/opposite party no.2 under Section 319 Cr.P.C. It is further submitted that the opposite party no.2 has taken a plea of alibi.
6. Per contra, learned Counsel for the opposite party no.2 submits that no independent witness has supported the prosecution case. All the witnesses are family members of the informant. It is further submitted that the opposite party no.2 is a Government servant and he was named in the F.I.R. due to previous enmity. The Investigating Officer has completed his investigation in a proper way and found nothing against opposite party no.2. It is further submitted that no illegality has been committed by the learned Trial Court in rejecting the said application because the First Information Report was got registered on the basis of wrong fact and due to previous enmity. Opposite party no.2 was not present at the place of occurrence and he was present at his work place. The Investigating Officer, after investigation, found that the opposite party no.2 was not involved in the said offence, hence no charge-sheet has been filed against him. During trial, statement of P.W-1 Ali Raza, P.W.-2 Anwar and P.W.-3 Sarvar Ali were recorded. All these witnesses are family members and they are interested in the present case. Their statement cannot be relied upon. It is further submitted that the learned Court has passed a detailed and reasoned order and hence, this revision may be dismissed.
7. I have heard the rival submissions of learned Counsel for parties and perused the record.
8. As per the facts of the case, an F.I.R. bearing Case Crime No. 612 of 2011, under Sections 147, 148, 323, 324, 325, 308 and 506 I.P.C. P.S. Dudhara, District Sant Kabir Nagar was registered against 7 persons. During investigation statement of the informant and other persons were recorded under Section 161 Cr.P.C. Medical examination of the injured witnesses were conducted at Community Health Centre, Semariyawan, Sant Kabir Nagar. After completion of investigation, charge-sheet was filed against four persons.
9. Learned Trial Court framed charges against the accused persons under appropriate sections in accordance with law and during trial, statements of P.W-1 Ali Raza, P.W.-2 Anwar and P.W.-3 Sarvar Ali were recorded. After that, an application under Section 319 Cr.P.C. was moved by the informant. The said application was rejected by the impugned order by the learned Trial Court.
10. The F.I.R. annexed with the record, clearly shows that the informant has specifically stated about the role of the opposite party no.2 in commission of offence. The witnesses have also clearly stated about the role of opposite party no.2. Learned Trial Court, while rejecting the said application, has reached on a conclusion that the medical examination of the injured Smt. Khusnain has been shown to be conducted on 29.07.2011, whereas the date of incident is 30.07.2011.
11. The injury report of Smt. Shanaz, Sarvar and Ali Raza are all dated 30.07.2011 bearing OPD No. 28362, 28363 and 28365, respectively, but in the medical report of Khusnain, bearing OPD No. 28364, the date is mentioned as 29.07.2011. A perusal of all medical reports shows that all the medical examinations were conducted serially and on the same date but inadvertently date in the medical examination report of Smt. Khusnain is mentioned as 29.07.2011.
12. An argument has been raised on behalf of opposite party no. 2 that he was not present at the place of incidence and was on his duty. The statements of P.W-1 Ali Raza, P.W.-2 Anwar and P.W.-3 Sarvar Ali clearly show the involvement of opposite party no.2 in the said incident. Learned Counsel for the opposite party no.2 has submitted that P.W-1 Ali Raza, P.W.-2 Anwar and P.W.-3 Sarvar Ali are the family members and they are interested in the case and their evidence cannot be relied upon. This argument has no force because it is a settled principle of law that the evidence of any witness cannot be discarded on the basis that he is family member of the informant or the injured. A plea has also been taken that the opposite party no.2 was not present on the place of occurrence. Ali Raza, Anwar and Sarvar Ali in their statement under Section 161 Cr.P.C. have clearly stated about the involvement of opposite party no.2 in this case even during trial before the Trial Court P.W-1 Ali Raza, P.W.-2 Anwar and P.W.-3 Sarvar Ali all the three witnesses have clearly stated the presence and role of this accused in the present case.
13. By the several judgments passed by the Hon'ble Apex Court and this Court, it is settled principle of law that power under Section 319 Cr.P.C. is discretionary and extraordinary power, which should be exercised sparingly and only in those cases where the circumstances of such case so warrant. This power could not be exercised merely because the Magistrate or the Sessions Judge is in the opinion that some other persons may also be guilty of committing the offence. It is also settled principle of law that the learned Court, at the time of deciding the application under Section 319 Cr.P.C. must take into consideration the statement of the witnesses recorded during trial. In the present case,P.W-1 Ali Raza, P.W.-2 Anwar and P.W.-3 Sarvar Ali have clearly explained involvement of opposite party no.2 in the commission of offence. Learned Trial Court has rejected the application merely on the basis that the date of medical examination is reported to be 29.07.2011 and the date of offence is different. A perusal of the impugned order clearly shows that the Trial Court has passed the order against the statements available on record. Thus, the impugned order is liable to be set-aside.
14. Accordingly, the revision is allowed and order dated 21.02.2022, passed by the Additional Sessions Judge/Special Judge (POCSO Act), Sant Kabir Nagar on an application under Section 319 Cr.P.C. moved in S.T. No. 142 of 2021, State v. Liyakat Ali and others, arising out of Case Crime No. 612 of 2011, under Sections 147, 148, 323, 324, 325, 308 and 506 I.P.C. P.S. Dudhara, District Sant Kabir Nagar is set-aside. The learned Trial Judge is directed to pass a fresh order on the application filed by the revisionist under Section 319 Cr.P.C. within a month from receiving a certified copy of this order.
15. Office is directed to sent a copy of this order to the Court concerned for necessary compliance.
(Chawan Prakash,J.)
October 10, 2025
Vijay
