# Sagir Ahmad Revisionist v. The State of U.P. & Anr. Opp. Parties

- **Citation:** (2022) 4 ILRA 592
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-04-26
- **Case number:** Criminal Revision No. 189 of 2014
- **Bench:** Brij Raj Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sagir-ahmad-revisionist-v-the-state-of-u-p-anr-opp-parties-48272
- **Pages:** 5

## Headnote

A. Criminal Law - The Court observed that the
lower court has not taken into consideration the
other circumstances available before him and
passed the order solely on the basis of the
St.ment of P.W. 1 and P.W. 3 which is not
proper. (Para 15)

In
absence
of
proof
of
other
circumstances, the only circumstance of
last
seen
together
and
absence
of
satisfactory explanation, cannot be a
ground for conviction. (Para 13)
Revision Allowed. (E-10)

List of Cases cited:-

## Text

592 INDIAN LAW REPORTS ALLAHABAD SERIES

27. I find no irregularity or illegality
in the concurrent finding of fact arrived at
by the Juvenile Justice Board and the lower
appellate court.

28. The revisions, being devoid of
merit, are dismissed.
----------
(2022)04ILR A592
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 26.04.2022

BEFORE

THE HON'BLE BRIJ RAJ SINGH, J.

Criminal Revision No. 189 of 2014

Sagir Ahmad ...Revisionist
Versus
The State of U.P. & Anr. ...Opp. Parties

Counsel for the Revisionist:
Arun Sinha, Siddharth Sinha

Counsel for the Opp. Parties:
Govt. Advocate

A. Criminal Law - The Court observed that the
lower court has not taken into consideration the
other circumstances available before him and
passed the order solely on the basis of the
St.ment of P.W. 1 and P.W. 3 which is not
proper. (Para 15)

In
absence
of
proof
of
other
circumstances, the only circumstance of
last
seen
together
and
absence
of
satisfactory explanation, cannot be a
ground for conviction. (Para 13)
Revision Allowed. (E-10)

List of Cases cited:-

1. Anjan Kumar Sarma Vs St. of Assam (2017)
14 SCC 359

2. Brijendra Singh & ors Vs St. of Raj. (2017) 7
SCC 706
3. Arjun Marik & ors. Vs St. of Bihar 1994 Supp.
(2) SCC 372

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

5. Ravindra Nath Mishra Vs St. of U.P.
Application under Section 482 bearing No. 6936
of 2019

6. Sartaj Singh Vs St. of Har. & anr. (2021) 5
SCC 337

7. Dev Wati & ors. Vs St. of Har. & ors. 2019
(195) AIC 225 (S.C.)
(Delivered by 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, DistrictSitapur, 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.
4 All. Sagir Ahmad Vs. The State of U.P. & Anr.
593
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
594 INDIAN LAW REPORTS ALLAHABAD SERIES
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 crossexamination, 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 chargesheeted. 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
4 All. Sagir Ahmad Vs. The State of U.P. & Anr.
595
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
596 INDIAN LAW REPORTS ALLAHABAD SERIES
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 examinationin-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.
----------
(2022)04ILR A596
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 06.04.2022

BEFORE

THE HON'BLE KARUNESH SINGH PAWAR,
J.
Crl. Revision (D) No. 475 of 2008

Razia ...Revisionist
Versus
State of U.P. ...Opp. Party

Counsel for the Revisionist:
Ashok Kumar Srivastava

Counsel for the Opp. Party:
G.A., Abdul Jabbar

A. Criminal Law - Criminal Procedure
Code, 1973: Section 125 - The divorced
Muslim women is entitled to claim maintenance
from her husband even after expiry of period of
iddat as long as she does not remarry. (Para 11)
Revision Allowed. (E-10)

List of Cited cases:-

1. Danial Latifi & anr. Vs U.O.I. AIR 2001 SC
3958

2. Shabana Bano Vs Imran Kham Criminal
Appeal No. 2309 of 2009 (followed)

3. Rajnesh Vs Neha (2021) 2 SCC 324 (followed)
(Delivered by Hon'ble Karunesh Singh
Pawar, J.)

1. The application seeks condonation
of delay in filing the criminal revision.

2. Heard learned counsel for the
revisionist and learned A.G.A. for the
State.

3. None appears for respondent no.2.

4. Since cause shown in the affidavit
filed in support of application for
condonation of delay in filing the instant
revision is satisfactory, the application
for condonation is allowed and delay in
filing the instant revision is hereby
condoned.