Dismissed

Irshad v. State of U.P.

Allahabad HC15 Sept 2021CRLR/165/2018

Case brief

AI extract

What is this about?

The court dismissed the revision petition, upholding the Sessions Judge's order summoning the revisionist under Section 319 Cr.P.C. The court applied the doctrine of Judex damnatur cum nocens absolvitur, finding that the evidence supported the conviction probability.

What the court decided

AI extract

Irshad Vs State of U.P. — Criminal Trial and Appeal | Allahabad HC (2021)

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Court No. - 49

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Case :- CRIMINAL REVISION No. - 165 of 2018

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Revisionist :- Irshad Opposite Party :- State of U.P. Counsel for Revisionist :- Mr Indra Kumar Chaturvedi,Mr Ghan Shyam Dubey,Mr Vijay Prakash Chaturvedi Counsel for Opposite Party :- G.A.,Mohd Shbbir,Mr Mohd Shamim Khan,Shishir Tandon,Tripathi B.G.

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Hon'ble Vivek Agarwal,J.

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Heard Sri Indra Kumar Chaturvedi, learned Senior Advocate assisted by Sri Vijay Prakash Chaturvedi, learned counsel for revisionist, Sri Vikas Goswami, learned AGA for the State and Sri Shishir Tandon, learned counsel for private respondent.

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This revision has been filed assailing the order dated 20.12.2017 passed by learned Sessions Judge, Siddharthnagar, summoning the present revisionist on an application under Section 319 Cr.P.C. in Sessions Trial No. 76 of 2016 (State vs. Mashhoor Alam @ Raka and Another), arising out of Case Crime No. 1714 of 2015, under Sections 279, 302 IPC, Police Station-Dhebarua, District-Siddharthnagar.

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Learned counsel for revisionist submits that FIR was registered on 21.11.2015 for an incident, which took place on 21.11.2015 under Sections 279, 302 IPC against owner of vehicle no. UP 47 B 1587. It is submitted that a simple case of road accident has been converted into that of one under Sections 279, 302 IPC and now, revisionist has been summoned, exercising authority under Section 319 Cr.P.C. on the statements of PW6.

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Placing reliance on judgment of Supreme Court in case of Brijendra Singh and Others vs. State of Rajasthan; (2017) 7 SCC 706 , where in it is held that degree of probability to summon the additional accused is to be made on the touchstone of evidence to be understood in a wider sense both at the stage of trial and even at the stage of inquiry. It is submitted that in Para-9 of the said decision, placing reliance on the judgment of Constitution Bench of Supreme Court in case of Hardeep Singh and others Vs. State of Punjab and others; (2014) 3 SCC 92, it is held that Section 319 Cr.P.C., is to be invoked with aim to achieve objective that real culprit should not get away unpunished. In the present case, it is submitted that the yardstick of evidence is to be much more stricter than one which is used while summoning the accused. Court has to be

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cautious and has to invoke such powers when court has drawn its satisfaction in regard to complicity of some other persons, not facing trial in the offence.

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It is submitted that it is to be seen that persons, so summoned, on the touchstone of the evidence can be tried together with the already arraigned accused persons, then only such power should be exercised and such powers should be exercised with lot of caution.

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Learned AGA, on the other hand, submits that court below has exercised authority after due appreciation of evidence of PW6-Zamil Ahmad, who happens to be an eye-witness and whose testimony has yet not been rebutted even in the crossexamination. He had not only seen the present revisionist, but it has also come on record that Irshad was exonerated at the time of investigation on the statements of Amin and Zamil whereas PW1-Abdullah categorically deposed that under a conspiracy, Mashhoor Alam and Irshad, killed their father by trampling him under a truck. PW2-Amin also deposed that he had heard Mashhoor Alam @ Raka and Irshad Ahmad, talking out their plan about elimination of the deceased and Mashhoor Alam @ Raka informed somebody, over telephone, to call the truck expeditiously, failing which, the deceased would have escaped their plan. PW6-Zamil Ahmad has also stated that he had seen Mashhoor Alam, Shahjad and Irshad Ahmad about a week prior to the incident at 'Bhatta', where 'panchayat' was held in regard to transaction of about Rs. 9,00,000/- (nine lakhs rupees), when Irshad had refused to pay the amount and had threatened other party with his life. He had seen three persons making a plan behind the 'gumti of paan' in regard to murder of Kallu. He also deposed about consistent company of Mashhoor Alam, Shahjad and Irshad Ahmad few days prior to the incident.

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When tested on the touchstone of such evidence, which has come on record and which has largely remained unrebutted, this Court is of the opinion that Doctrine of Judex damnatur cum nocens absolvitur (Judge is condemned when guilty is acquitted) must be used as a beacon light while explaining the ambit and the spirit underlying the enactment of Section 319 Cr.P.C., will be applicable to the facts and circumstances of the case and when this doctrine is applied, then it cannot be said that impugned order is arbitrary or illegal, calling for any interference, thus, revision fails and is dismissed.

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Order Date :- 15.9.2021 Vikram/-

Irshad v. State of U.P.

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Irshad v. State of U.P.

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