# Ayodhya Prasad Umrao & Anr. Revisionists v. State of U.P. & Anr

- **Citation:** (2020) 1 ILRA 229
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-07-08
- **Case number:** Criminal Revision No. 4113 of 2018
- **Bench:** Rahul Chaturvedi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ayodhya-prasad-umrao-anr-revisionists-v-state-of-u-p-anr-45030
- **Pages:** 9

## Headnote

A. Criminal Procedure Code, 1973 -
Section 319 - Degree of satisfaction for
invoking Section 319 - should be more
than prima facie as exercised at the time
of framing of the charge, but short of
satisfaction
to
an
extent
that
the
230 INDIAN LAW REPORTS ALLAHABAD SERIES
evidence, if goes unrebutted, would lead
to conviction.

B. Doctrine - judex damnatur cum nocens
absolvitur - Judge is condemned when
guilty is acquitted - prosecution U/s 319
Cr.P.C springs out of said doctrine -
objective of Section 319 Cr.P.C is that the
real
culprit
should
not
get
away
unpunished.

Held - eye witness, in her statement u/s 161
Cr.P.C. described physical appearance of
miscreants but did not took the names of
revisionists who are her own Chachia Sasur and
her Devar - after five months delay, injured
witnesses stated the involvement of the
present revisionists, in commission of the
offence- during trial, increased the number of
assailants from 2 to 8, assigned weapons to
them and attributed general role of assault by
all of them - completely negated by the injury
reports - under such circumstances summoning
revisionists as accused persons, appears to be
unjust and improper.

Criminal Revision Allowed. (E-5)

List of cases cited: -

1.Hardeep Singh Vs St. of Punjab (2014) 3 SCC
92

## Text

1 All. Ayodhya Prasad Umrao & Anr. Vs. State of U.P. & Anr.
229

25. In the present case, the
contradictions in the manner of assault by
Axe on deceased Girish Singh, as stated by
PW-1, and evidence of PW-4 would not
make the prosecution story improbable or
false. The trial Court has been incorrect in
discarding the testimony of PW-1. Even if
it is believed that she did not witness the
murder of his uncle, her testimony could
not have been discarded, regarding the
murder of her father. PW-1 was the natural
witness. The assailants/accused belonged
to the same village and were known to her.
Her presence at the house and witnessing
the incident had been discarded by the trial
Court, considering the medical evidence.
The approach of the trial Court does not
appear to be correct.

26. The trial Court finding that there
was no motive for commission of the
offence does not appear to be correct. The
accused,
in
their
statements,
have
specifically stated that they have been
falsely implicated because there was
enmity between them and complainant due
to murder of Badake Singh in which
Guddu Singh, complainant and two others
belonging to ''Pasi Community' were the
accused. The motive becomes irrelevant
when there is ocular testimony of the
incident.

27. In view of the aforesaid, the
impugned judgment and order is set-aside,
and the matter is remitted back to the trial
Court for decision afresh. So far as
acquittal of Bhola Singh (respondent no.
9) is concerned, the trial Court was correct
in holding that except for bald statement of
PW-2 that he was involved in commission
of the offence, there is no evidence
regarding his involvement in commission
of the offence. Therefore, the impugned
judgment and order, so far as it relates to
Bhola Singh (respondent no. 9) is
concerned, it is affirmed. The trial Court is
directed to decide the case afresh in
accordance with law within a period of
four months from today.

28. Bail bonds of the respondents 2
to 8 (Rajjan Singh, Guddu Singh, Raj
Kumar Singh, Uttam Singh, Udham Singh,
Madal Singh and Parashuram Singh) are
cancelled. They are required to surrender
before the trial Court and apply for fresh
bail.

29. The revision is allowed partly.
Let a copy of this order, along with
L.C.R., be transmitted to the concerned
trial Court forthwith for compliance.
----------
(2020)1ILR A229

REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.07.2019

BEFORE
THE HON'BLE RAHUL CHATURVEDI, J.

Criminal Revision No. 4113 of 2018

Ayodhya Prasad Umrao & Anr.
 ...Revisionists
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Revisionists:
Sri I.M. Khan

Counsel for the Respondents:
A.G.A., Sri Birendra Singh, Sri Kamal
Kishor

A. Criminal Procedure Code, 1973 -
Section 319 - Degree of satisfaction for
invoking Section 319 - should be more
than prima facie as exercised at the time
of framing of the charge, but short of
satisfaction
to
an
extent
that
the
230 INDIAN LAW REPORTS ALLAHABAD SERIES
evidence, if goes unrebutted, would lead
to conviction.

B. Doctrine - judex damnatur cum nocens
absolvitur - Judge is condemned when
guilty is acquitted - prosecution U/s 319
Cr.P.C springs out of said doctrine -
objective of Section 319 Cr.P.C is that the
real
culprit
should
not
get
away
unpunished.

Held - eye witness, in her statement u/s 161
Cr.P.C. described physical appearance of
miscreants but did not took the names of
revisionists who are her own Chachia Sasur and
her Devar - after five months delay, injured
witnesses stated the involvement of the
present revisionists, in commission of the
offence- during trial, increased the number of
assailants from 2 to 8, assigned weapons to
them and attributed general role of assault by
all of them - completely negated by the injury
reports - under such circumstances summoning
revisionists as accused persons, appears to be
unjust and improper.

Criminal Revision Allowed. (E-5)

List of cases cited: -

1.Hardeep Singh Vs St. of Punjab (2014) 3 SCC
92

2. Periyasami & Ors Vs S. Nallasamy (2019) 4
SCC 342

3. Labhuji Amratji Thakor & Ors Vs St. of Guj &
Anr Cri. Appeal No. 1349/2018 Dt. 13.11.2018

4. Brijednra Singh & ors. Vs. St. of Raj(2017) 7
SCC 706

(Delivered by Hon'ble Rahul Chaturvedi, J.)

1. Heard Shri I.M. Khan, learned
counsel for the revisionists, Sri Birendra
Singh, learned counsel for private opposite
party, learned A.G.A. and perused the
record.

2. The instant Criminal Revision is
targeted against order dated 03.11.2018
passed by VII-Additional Session Judge,
Fatehpur
whereby
while
deciding
application no. 12B under section 319
Cr.P.C. in four connected Session Trials
i.e. S.T. Nos. 148/2014 under sections 396,
412 IPC, Police Station Bindki, District
Fatehpur the accused applicants have been
summoned by the court concerned.

3. Submissions made by learned
counsel for the revisionists are that on the
earlier occasion, a similar exercise was
carried out by earlier Additional Session
Judge, Court No. 8, Fatehpur vide order
dated 08.02.2016 and said order was
challenged before Coordinate Bench of
this Court by means of Criminal Revision
No. 1107/2016 (Jitendra Umrao Vs. State
of U.P. and others). The aforesaid Bench
of this Court by its judgment dated
09.08.2018 while allowing the aforesaid
revision,
set-aside
the
order
dated
08.02.2016 and remitted the matter to the
court concerned for fresh consideration in
accordance with law, hence a subsequent
order was passed on 03.11.2018 by the
court below, which is under challenge by
means of instant Criminal Revision.

4. Before coming to the merits of the
case, it is imperative to mention bare
skeleton facts of the case for better
appreciation on the controversy involved.

5. On 02.08.2013 around 4.40 in the
morning a F.I.R. was got registered by one
Jitendra
Umrao
against
unknown
miscreants of the incident, alleged to have
taken place during the intervening night of
01/02.08.2013, which was registered as
Case Crime No. 232/2013 U/s 396 I.P.C.,
at Police Station Bindki District Fatehpur.
As per the text of the F.I.R., on the fateful
day, the informant along with his family
members were sleeping at his residence
1 All. Ayodhya Prasad Umrao & Anr. Vs. State of U.P. & Anr.
231
whereas the informant's mother -Smt.
Somwati,
Bhabhi-Jyoti,
wife
of
Abhimannyu were sleeping on the roof
top. The father Ganga Prasad was sleeping
in guest room and two brothers namely
Bhupendra
and
Abhimannyu
were
sleeping in their respective rooms. Around
2.00-300 hours, in dead hours of night,
some miscreants barged into the house,
through wall, where they assaulted upon
mother Smt. Somwati and Bhabhi Smt.
Jyoti, inflicting several injuries on them.
Thereafter, they intruded into the rooms of
Ganga
Prasad
(father),
brothers
Abhimannyu and Bhupendra, assaulted
and caused serious injuries to them also.
Then they broke Almirah, from where
looted the cash, other valuables and fled
away from the site. The informant's
Bhabhi- Smt. Jyoti narrated the entire
incident to the informant therafter, which
made the informant rush to the spot of
occurrence where he found his father dead
and his mother, bhabhi and both the
brothers seriously injured. He further
narrated in the FIR that while taking her
mother to the hospital, she took her last
breath en-route. Bhabhi Smt. Jyoti and
both the brothers were taken to C.H.C.
Bindki, Fatehpur where both the brothers
were referred to Kanpur for better
treatment. Thus, from the text of F.I.R.
following features are abundantly clear:-

(a). The incident was of in the
night hours.

(b) No body could identify the
assailants.

(c). There was loot of cash and
valuable ornaments.

(d). Two persons namely Ganga
Prasad and his wife Smt. Somwati lost
their lives in this transaction, whereas 3
persons namely Bhupendra, Abhimannyu
as well as Smt. Jyoti have sustained
serious injuries over their person.

6. Annexure Nos. 2 ad 3 of the
revision are injury reports of Shri
Bhupendra Umarao and Abhimannyu
Umrao issued by Madhuraj Hospital,
Kanpur which categorically reveals that
both the injured persons were admitted in
the hospital on 02.08.2013 at 6.00 in the
morning by Sujeet (revisionist no.2) and as
per the opinion of the doctor, the injuries
sustained by the injured were grievous in
nature. It is interesting to point out herein
that both the injured persons were
admitted by Sujeet (revisionist no.2), who
is a non-accused but by means of the
impugned order, he was also made
accused along with his father Ayodhya
Prasad Umrao.

7. After registeration of the case, the
investigation in the matter started rolling
and
police
recorded
statements
of
informant Jitendra Umrao U/s 161 Cr.P.C.,
Smt. Jyoti wife of Abhimannyu (eye
witness), Bhupendra Umrao (injured),
Abhimannyu (the injured witness). On
critical analysis of the statements of
injured witnesses, it is abundantly clear
that the informant who is not an eye
witness of the incident, has reiterated the
version of FIR. However, Smt. Jyoti (eye
witness) has mentioned that 6-7 miscreants
barged into the house and assaulted them
by lathi-danda to her mother-in-law Smt.
Somwati and to herself, thereafter they
barged into the rooms of Ganga Prasad,
Bhupendra and Abhimannyu and assaulted
them
by
lathi-danda,
looted
cash,
valuables and jewelries. Thereafter she
informed the informant Jitendra Umrao
about the incident. In her statement
232 INDIAN LAW REPORTS ALLAHABAD SERIES
recorded under section 161 Cr.P.C. she has
given vivid description of those miscreants
that amongst them, one was aged about
40-45 years, another was slightly bulky
and addressing one to another as Lachi @
Lachhi.
She
has
identified
all
the
miscreants in the electricity light and
stated that none of the miscreants had
covered their faces.

8. Similarly, Bhupendra Umrao
(injured) has narrated the same story in his
statement U/s 161 Cr.P.C. to the police
with addition to it that there is certain
misunderstanding between him and his
wife Smt. Mamta and since then she is
residing at her parent's place at Kanpur
and the injured has raised his unfounded
suspicion on Mamta that she might be
involved in this incident. Except this, in
his 161 Cr.P.C. statement, she too has not
taken name of the present revisionists.

9. Yet another injured Abhimannyu
has reiterated the version of his brother
Bhupendra Umrao and has given vivid
physical description of assailants. In his
statement U/s 161 Cr.P.C. he further stated
that the miscreants were talking in the
language which is often used by "Kanjads"
(caste and creed who are wanderers of
abandoned places).

10. After thrashing all the material
collected
by
the
police
during
investigation, the police submitted charge
sheet only against Prem Kumar and
Sumerjeet U/s 396 I.P.C.

11. It is contended by the learned
counsel for the opposite parties that the
police has played a partisan approach in
not recording the statements U/s 161
Cr.P.C. of the witnesses in appropriate
manner by intentionally dropping the
names of revisionists and co-accused,
Mamta. Hence, opposite party no.2 filed a
complaint case bearing Complaint Case
No. 727/2014 before Chief Judicial
Magistrate, Fatehpur for summoning the
present revisionists. The statements under
sections 200 and 202 Cr.P.C. were
recorded and the said complaint is pending
till date without any summoning order and
application U/s 210 Cr.P.C. was moved for
clubbing the same which is pending
undecided.

12. After committal of the case, the
trial in the matter begun and testimonies of
PW-1, PW-2 and PW-3 were recorded. It
is pointed out by the counsel for the
revisionists
that
after
recording
the
aforesaid testimonies, the texture of the
case got changed. It is relevant to mentin
here that the non-accused Ayodhya Prasad
Umrao and his son Sujeet Kumar are close
family members of the deceased, rather
siblings.

13. This court got an opportunity to
go through the testimonies of all the three
witnesses (Annexure no. 8 to the affidavit)
including the testimony of PW-1, Jitendra
Umrao, who is not an eye witness, who in
his examination-in-chief, has admitted that
he lodged FIR against unknown persons
but
thereafter
the
injured
brothers
disclosed the name of assailants as Prem
Kumar and Samarjeet (charge sheeted
accused) and Raja, Surendra, Munesh
Lachi @ Lachhi, Sujeet and Ayodhya
Prasad as well as Mamta as accused.
Ayodhya Prasad Umrao is the real uncle of
informant and Sujeet Kumar is the cousin.
In the cross examination, PW-1 has stated
that he has taken name of the present
revisionists as well as Mamta but they
have not been made accused in the charge
sheet. Thereafter PW-2, Bhupendra Umrao
1 All. Ayodhya Prasad Umrao & Anr. Vs. State of U.P. & Anr.
233
in his examination-in-chief has stated that
revisionist no.1 was armed with a revolver,
revisionist no.2 was having gun in his hand,
Mamta was armed with knife, Prem Kumar
was armed Kanta, whereas Samarjeet, Raja,
Surendra, Munesh, Lachi @ Lachhi were
carrying lathi-danda and iron rods and all of
them jointly assaulted upon the victims by
their respective weapons.

14. Taking the arguments to be true
on its face value of the applicants and
comparing the injury report of Bhupendra
Umrao, who was admitted in the hospital
by
none
other
than
Sujeet
Kumar
(revisionist no.2), there are 3 traumatic
swelling on his person, the prosecution
story completely belies the allegations and
the role attributed to the accused pesons.

15. Coming to examination-in-chief
of PW-3 Abhimannyu Umrao, he too, in
his testimony named the accused persons
and it is interesting to point out here that
his 161 Cr.P.C. statement was recorded on
21.08. 2013 in CD Parcha No. 19 wherein
he has raised certain amount of suspicion
on his wife Smt. Mamta but after almost
five months, his second statement was
recorded in CD Parcha No. 48, wherein he
inserted the names of present revisionists.

16. It is contended by the learned
counsel for the revisionists that not even a
single item of the alleged looted articles
was recovered either from the possession
of revisionists or on their pointing out.

17. In nut-shell, the fact of the case
summaries as follows:

(a) The revisionists are not
named in the FIR.

(b)
During
161
Cr.P.C.
statements, none of the injured persons or
eye witnesses have taken the names of
revisionists or attributed their role in the
commission of the offence. Ms. Jyoti has
categorically
given
vivid
physical
descriptions of the assailants and has
clearly mentioned that none of the
assailants covered their faces at the time of
the alleged incident.

(c) Under such circumstance, it
is implausible that she would not identify
the revisionists, who are her paternal
uncle-in-law (Chachia Sasur) and younger
brother-in-law (Devar).

18. If all the testimonies are taken to
be true, they are named in the testimonies
with their respective weapons, but the
prosecution has failed to attribute any
specific role to them in commission of the
offence. There is no recovery of any
incriminating article either from the
possession or on their pointing out.

19. On these above mentioned
factual
parameters,
this
court
has
opportunity to examine the legal veracity
and validity of the impugned order dated
03.11.2018.

LEGAL DISCUSSIONS:

It
remains
trite
that
the
provisions contained in 319 Cr.P.C. are to
achieve the objective that the real culprit
should not get away unpunished. The
prosecution U/s 319 Cr.P.C. is springs out
of doctrine judex damnatur cum nocens
absolvitur (Judge is condemned when
guilty is acquitted) and this doctrine must
be used as a beacon light while explaining
the ambit and the spirit underlying the
enactment of Section 319 Cr.P.C.

20. By virtue of the aforesaid
provision, the court is empowered to
234 INDIAN LAW REPORTS ALLAHABAD SERIES
proceed against any person who is not
shown as an accused, if it appears from the
evidence
that
such
person/s
have/s
committed any offence for which he could
be tried with other co-accused persons.
The court concerned is duty-bound to
identify the real culprit and punish him.
Even under the circumstance when the
investigating agency has not arrayed that
person as accused, the court has no power
to meet to such an exceptional eventuality.
The million dollars question remains that
under what circumstance and in what stage
of trial the degree of satisfaction is to be
exercised under section 319 Cr.P.C. The
law courts are the sole repository of justice
and duty is casted upon them to uphold the
rule of law.

21. Thus, it would be inappropriate
to deny such powers with the court in our
criminal judicial system, which is not
uncommon that real and unscrupulous
accused at time, get away by manipulating
the
investigating
and/or
prosecuting
agency.

22. The Hon'ble Apex Court in its
recent celebrated pronouncement in the
case of Haradeep Singh Vs. State of
Punjab (2014) 3 SCC 92 has laid down
broad principles of law, which is as
follows:

"95. In Suresh Vs. State of
Maharashtra, AIR 2001 SC 1375, this
Court after taking note of the earlier
judgments in Niranjan Singh Karam
Singh Punjabi Vs. Jitendra Bhimraj
Bijjaya, AIR 1990 SC 1962 and State of
Maharashtra Vs. Priya Sharan Maharaj,
AIR 1997 SC 2041, held as under:

"9... at the stage of Sections 227
and 228 the Court is required to evaluate
the material and documents on record with
a view to finding out if the facts emerging
there from taken at their face value
disclose the existence of all the ingredients
constituting the alleged offence. The Court
may, for this limited purpose, sift the
evidence as it cannot be expected even at
that initial stage to accept all that the
prosecution states as gospel truth even if it
is opposed to common sense or the broad
probabilities of the case. Therefore, at the
stage of framing of the charge the Court
has to consider the material with a view to
find out if there is ground for presuming
that the accused has committed the offence
or that there is not sufficient ground for
proceeding against him and not for the
purpose of arriving at the conclusion that
it is not likely to lead to a conviction.

105. In Sohan Lal and Ors. Vs.
State of Rajasthan, (1990) 4 SCC 580, a
two-Judge Bench of this Court held that
once an accused has been discharged, the
procedure for enquiry envisaged under
Section
398
Cr.P.C.
cannot
be
circumvented by prescribing to procedure
under Section 319 Cr.P.C.

106. In Municipal Corporation
of Delhi Vs. Ram Kishan Rohtagi & Ors.
AIR 1983 SC 67, this Court held that if
the prosecution can at any stage produce
evidence which satisfies the court that
those who have not been arraigned as
accused or against whom proceedings
have been quashed, have also committed
the offence, the Court can take cognizance
against them U/s 319 Cr.P.C. and try them
along with the other accused.

23. Thus the provisions contained in
Section 319 Cr.P.C. sanctions summoning
of any person on the basis of any relevant
evidence as available on record. However,
being a discretionary power and an
extraordinary one, it has to be exercised
sparingly and only when cogent evidence
1 All. Ayodhya Prasad Umrao & Anr. Vs. State of U.P. & Anr.
235
is available. The prime facie opinion
which is to be formed for exercise of this
power requires stronger evidence then
mere probability of complicity of a person.
The test to be applied is the one which is
more than a prima facie case as examined
at the time of framing charge but not of
satisfaction to the extent that the evidence,
if goes uncontroverted, would lead to the
conviction of the accused.

23. In the recent judgment of Hon'ble
Apex Court in the case of Periyasami and
others Vs. S. Nallasamy (Criminal Appeal
No. 456 of 2019) decided on 14th March,
2019), which is akin to facts of the present case
and the Hon'ble Apex Court opined that in the
first information report or in the statements
recorded under Section 161 Cr.P.C., the names
of the revisionists or any other description have
not been given so as to identify them. The
allegations in the FIR are vague and can be
used any time to include any person in the
absence of description in the First Information
Report to identify such person. There is no
assertion in respect of the villages to which the
additional accused persons belong. Therefore,
there is no strong or cogent evidence to make
the revisionists stand the trial for the offences
under Section 147, 448, 294(b) and 506 of IPC
in view of the judgment in Hardeep Singh
Case (supra). The additional accused cannot
be summoned under Section 319 Cr.P.C., in
casual and cavalier manner in the absence of
strong and cogent evidence. Under Section 319
Cr.P.C. additional accused can be summoned
only if there is more than prima facie case, as
is required at the time of framing of charge but
which is less than the satisfaction required at
the time of conclusion of the trial convicting
the accused.

24. The High Court had set-aside the
order passed by the learned Magistrate
only on the basis of the statements of some
of the witnesses examined by the Complainant.
Mere disclosing the names of the revisionists
cannot be said to be strong and cogent
evidence to make them to stand trial for the
offence under Section 319 Cr.P.C., especially
when the Complainant is a husband and has
initiated criminal proceedings against family of
his in-laws and when their names or other
identity were not disclosed at the first
opportunity.

24. In the present case, on the above
lines, when Ms. Jyoti, the eye witness, in
her statement recorded under section 161
Cr.P.C. has clearly described the physical
appearance of the miscreants by referring
their age and height, clearly mentioning
therein that none of the assailants have
covered their faces but, there too, she was
unable to identify Ayodhya Prasad Umrao,
her own Chachia Sasur and Surjeet
Kumar, her Devar. Not only this, as
mentioned
above,
Sujeet
Kumar/revisionist no.2 has taken the
injured persons to Madhuraj Hospital,
Kanpur and got them admitted, coupled
with the facts that after five months delay
a "wisdom" was drawn upon the injured
witnesses regarding the involvement of the
present revisionists in commission of the
offence. There was no reported previous
animosity
between
the
family
and
thereafter at the belated stage during the
trial, swelling the names, number of
assailants from 2 to 8, assigning the
weapons to them and attributing general
role of assault by all of them, is
completely negated by the injury reports of
injured persons, therefore, under such
circumstances
summoning
those
revisionists as accused persons, appears to
be unjust and improper.

25. The learned counsel for the
revisionists has further relied upon yet
236 INDIAN LAW REPORTS ALLAHABAD SERIES
another judgment of Hon'ble Apex Court
in the case of Labhuji Amratji Thakor &
others Vs. State of Gujarat and another
(Criminal Appeal No. 1349/2018) decided
on 13.11.2018, wherein it has been
underlined that the court has to consider
the substance of the evidence which has
come before it and as lay down by the
Constitutional Bench in Hardeep Singh's
case, has to apply the test i.e. "more than
prima facie as exercised at the time of
framing of the charge, but short of
satisfaction to an extent that the evidence,
if
goes
unrebutted,
would
lead
to
conviction."

26. In this case too, wherein the
evidence recorded by the police, carrying
number of pit holes and submitting charge
sheet only against two persons, the
prosecution at the stage of trial, wants to
cover-up these short falls by their
respective
testimonies,
assigning
the
weapons and general roles to all of them,
which is in stark contrast with the injury
reports of injured persons.

27. Learned counsel the revisionists
further relied upon another judgment of
Hon'ble Apex Court inre: Brijendra Singh
and others Vs. State of Rajasthan (2017)
Vol.7 SCC 706 in which Hon'ble Apex
Court opined that "the ''evidence' recorded
during trial was nothing more than the
statements which was 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
I.O.
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. revisionists)
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 revisionists 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 revisionists".

28. The Trial Court has miserably
failed to take into account that evidence
collected during investigation by the
investigating agency left untouched and
brushed aside by learned Trial Judge while
deciding the application 12B U/s 319
Cr.P.C.

29. Keeping in view all the factors,
enumerated above, if cumulatively taken into
account, goes to show that learned Trial
Judge has failed to appreciate and apply the
ratio laid down in the case of Hardeep Singh
(Supra) in its correct perspective and has
passed the order impugned, which is not
sustainable in the eye of law. Therefore,
revision deserves to be allowed.

30. Accordingly the impugned order
dated 03.11.2018 is looses its graound and
accordingly deserves to be quashed.

31. The order dated 03.11.2018
passed by VII-Additional Session Judge,
Fatehpur
passed
while
deciding
application no. 12B under section 319
Cr.P.C. in four connected Session Trials
i.e. S.T. Nos. 148/2014 under sections 396,
412 IPC, Police Station Bindki, District
Fatehpur
is
set
aside.
1 All. Manoj & Anr. Vs. State of U.P. & Anr.
237

32. The revision is allowed.

33. The matter is remanded to the
court concerned for fresh adjudication and
court concerned is directed that after
giving appropriate opportunity of hearing
to rival parties, it shall decide the same, in
accordance with law, keeping in view the
aforesaid judgements decided by the Apex
Court within one month from the date of
production of a certified copy of this order.
----------
(2020)1ILR A237

REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.12.2019

BEFORE
THE HON'BLE RAJUL BHARGAVA, J.

Criminal Revision No. 4357 of 2019

Manoj & Anr. ...Revisionists
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionists:
Sri Rajesh Kumar Mishra, Sri Vimlendu Tripathi

Counsel for the Opposite Parties:
A.G.A.

A. Criminal Procedure Code, 1973 - Section
319 - ambit of expression 'evidence' used in
Section 319 Cr.P.C - the word "evidence" is
 limited to the evidence recorded during tri
al in shape of oral and documentary
evidence - and not includes the evidence
collected
during
investigation
-
any
evidence collected during investigation
stage either in favour of the prosecution or
the accused cannot be taken into account
while exercising power u/s 319 Cr.P.C -
other evidence which come on record
between the stage of taking cognizance by
court till the commencement of the trial
can merely be used for corroborative
purposes (Para 16)
B. Criminal Procedure Code, 1973 - Section
319 Cr.P.C - Plea of alibi raised by accused -
cannot be examined by
court
while exercising
power u/s 319 Cr.P.C -
Revisionist accused have ample opportunity
to place his evidence at the appropriate
stage (Para 19)

C.
Maxim
-
secundum
subjectam
materiam - Ratio - judicial precedent - it
is well settled that authority / judicial
precedent has to be understood in
context of facts based on which the
observation made therein are made - a
decision is precedent on its own facts -
the ratio of a decision is generally
secundum subjectam materiam (Para 12)

Revisionists summoned u/s 319 Cr.P.C on the
basis of the statement of prosecutrix recorded
during trial - in which she levelled allegation of
gang rape against the revisionist - Order
challenged on the ground that Trial judge did
not consider the material collected during
investigation in respect of revisionist plea of
alibi which stood unrebutted & was of
impeccable quality - Held - trial justified in not
placing
reliance
on
wholly
inadmissible
evidence of alibi collected during investigation

Criminal Revision dismissed. (E-5)

List of cases cited: -

1. Hardeep Singh Vs St. of Pun (2014) 3 SCC 92

2. Brijendra Singh & ors Vs St. of Raj (2017) 7 SCC
706

3. Shiv Prakash Mishra Vs St. of UP & anr
Cr. Appeal No.1105 of 2019 dated 23.7.2019

4. Quinn Vs Leathem (1901) AC 495, Earls of Halsbury L.C.

5. St. of Hary Vs Sher Singh Manu SC/0236/1981

6. Gurcharan Singh Vs. St. of Pun Manu SC/0122/1955

7.Chandrika Prasad Singh Vs St. of Bih Manu
SC/ 0084/1971

8.St. of Ori. Vs Debendra Nath Padhi 2004(8)
Supremem Court Cases 568