Sahab Singh vs State of U.P.

P.K. Jain, J.—Heard Sri A.B.L. Gaur, learned Counsel for the revisionist and learned A.G.A. for State.

The facts appear to be that on a report lodged by one Ram Prakash a case u/s 302, I.P.C. was registered against Chandraman Singh, Sahab Singh and Subhash Singh. Chandraman Singh and Subhash Singh were prosecuted in S.T. No. 29 of 1990. Chandraman Singh was convicted by the Court and Subhash Singh was acquitted.

The revisionist, Sahab Singh, was subsequently charge-sheeted and was being tried in S.T. No. 238 of 1992. At the time of framing of the charge, an application was moved before the Sessions Judge that since the witnesses examined in S.T. No. 29 of 1990 did not nominate the present accused as one of the assailants and also that other witnesses had filed their affidavits disowning the case of the prosecution, no charge may be framed against the revisionist and he may be discharged u/s 227, Code of Criminal Procedure The learned Sessions Judge, after hearing the arguments, rejected the application on the ground that no discharge could be made on these grounds. This order of the learned Sessions Judge has been challenged in this revision.

Learned Counsel for the revisionist contents that the witnesses examined at earlier Sessions Trial, viz., 29 of 1990 did not nominate the revisionist as one of the accused who participated in the crime and that other witnesses filed affidavits denying to be witnesses of the incident, there was no material before the Court on the basis of which it can be said that there was a prima facie case against the revisionist. The Court, therefore, committed error in not discharging the revisionist u/s 227, Code of Criminal Procedure The contention of the learned Counsel is devoid of merits. Substantive evidence in a case is the evidence given by the witnesses during the trial of the case. Statements given in S.T. No. 29 of 1990 can only be treated as previous statements of the witnesses and can be used for purposes of contradiction or corroboration u/s 145 of the Indian Evidence Act. Affidavits filed by the witnesses can also not be treated as substantive evidence. At this stage, it is difficult to say as to what evidence the prosecution intends to produce against the revisionist. The charge is framed on the allegation of the prosecution and at the time of framing of the charge it is not to be seen if the evidence is sufficient to record conviction of the accused. Statements given by certain witnesses at the trial of other accused persons, although both the Sessions Trials arise out of the same incident, and acquittal of one of the accused persons at the earlier trial, cannot bar trial of third accused at the subsequent trial. Learned Counsel for the revisionist has referred to the case of Nadeem alias S.M. Nusrat Ali v. State of U.P., Criminal Misc. Application No. 11010 of 1989, decided by this Court on 22nd December, 1991. This case is not applicable to the facts of the present case since in the case relied upon by the learned Counsel for the revisionist, the accused at the time of his arrest, was found in possession of the illicit arms for which he was tried u/s 25/27 of the Arms Act and was also found in possession of property looted at the dacoity and was being subsequently tried for an offence u/s 412, I.P.C. He was acquitted for offence under Sections 25/27 Arms Act. The Court held that in such a case "Rule of issue estoppel" would apply where an issue of fact has been tried by a Court at an earlier occasion and the accused has been acquitted after recording a particular finding of fact, such finding of fact should constitute an estoppel against the prosecution and would preclude the reception of evidence to disturb that finding of fact in a latter trial even for a different offence. In that case at the earlier trial the evidence was found to be insufficient to convict the accused, the Court held that the same evidence cannot be allowed to be adduced so as to disturb the earlier finding arrived at by the Court. In the present case, revisionist was not tried in Sessions Trial No. 29 of 1990. There was no question of deciding his participation at the earlier trial. In my view, there is no illegality.

The revision is rejected. Stay order dated 1.2.93 is vacated.