ARSHAD ALI Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) These two revisions arise out of the same impugned order passed by the Vth Additional Sessions Judge, Saharanpur on 14/7/1987, charging the two petitioners under S. 364 read with 5. 34 I.P.C. and S. 120-B read with 5. 34, I.P.c.

(2.) The first information report was lodged by Smt. Firdos Kausar, wife of Sagir Ayyub, in Police Station Sarsawa, district Saharanpur. It is dated 29-8-85. According to this first information report, Sagir Ayyub, who is an Advocate by profession, is husband of this lady. On 14-8-85 Kamil, son of Sharif (the revisionist of criminal revision No. 1493 of 1987) came on a scooter to the house of Mr. Ayyub and took him on the pretext that they were going to Delhi on some work and will return after 2-3 days. Kamil had earlier also come with the same purpose and on 13-8-85 he had even brought a car on which they both were to go to Delhi but on that date because Kamil had diarrhea, the going was postponed. On 14-8-86 Kamil as well as Sagir Ayyub both went away on the Scooter. On 15-8-85 Kamil was seen in Sarsawa. Then the lady made an inquiry from him as to why her husband had not come. Kamil is said to have told her that he shall be brought on 28th of the month. Thereafter he started saying that Sagir Ayyub had not gone with him and the lady was apprehensive of the fact that her husband might have been abducted and it is possible that the intention of Kamil might be to murder him.

(3.) In support of this first information report, during investigation, statements of a number of witnesses were recorded. The learned counsel for the State with the help of the case diary read out to me the statement of Smt. Firdos Kausar, the first informant, Leeloo son of Niyamuddin, Niayamat Ali, Yassen, Rizwan, Mumtaz and Sagir Ahmed. He has also read out to me the statement of the accused recorded by the Investigating Officer. This statement of the accused simply shows that Sagir Ayyub was perhaps in Bombay or elsewhere. The other circumstance was that in Tehsil Nakud a sale deed had been executed in favour of Kamil and Arshad Ali, the two revisionist before me, on 16-8-85 and it is contended that the man who executed the sale deed in the name of Sagir Ayyub was impersonating. Proceedings of mutation on the basis of that sale deed are already going on and the learned Sessions Judge has already come to the conclusion that all the cases of offences connected with the obtaining of the allegedly fictitious sale deed can be proceeded with only if there is a complaint by the Court. There is no dispute on that point. The question remains whether on the strength of the evidence that is on the record i.e. the statements of the witnesses taken down during the investigation under 5. 161 Cr. P.C. including the statement of the first informant any case under 5. 364 read with 5. 34 or S. 120-B read with 5. 34 of the Indian Penal Code is made out against the present revisionists.