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2023 DIGILAW 221 (ALL)

Nadeem Tarik v. State of U. P.

2023-01-23

SYED AFTAB HUSAIN RIZVI

body2023
JUDGMENT : 1. Heard learned counsel for the revisionist, learned counsel for opposite party no.2 and learned AGA for the State. 2. This criminal revision is filed against the order dated 24.08.2022 passed in sessions trial no.106 of 2019 (State vs. Nadeem Tarik) crime no.49 of 2014 passed by Additional Sessions Judge/ FTC court no.1. By the impugned order, the learned trial court has rejected the application 47 ka filed by accused U/s 216 Cr.P.C. 3. The revisionist is accused in the sessions trial. Charge-sheet was submitted U/s 498A, 323, 504, 506 and 3(1) v IPC and 3/4 D.P. Act. Charges were also framed against the revisionist-accused. Trial commenced. After recording the statement of P.W.-4 Dr. Mursarat Mujeeb, an application U/s 216 Cr.P.C. was filed by the accused alleging therein that it has come on the record that no act has been done with intent to prevent child being born alive or to cause it to die after birth. The testimony of P.W.-4, Dr. Mursarat Mujeeb clearly discloses that no abortion was done by her. She has admitted that she has not done any abortion or admitted complainant/ victim. It is clear that false allegations were imputed by the complainant. From the cross-examination of P.W.-4, it is evident that incident of any abortion of child killing or any cruelty as stated in the FIR is vague, false and fictitious and no such incident ever occurred. In the present case, specifically in contest of section 315 Cr.P.C. was imputed upon the so called observation of doctor P.W.-4 and the doctor has clearly stated about non abortion, non injury and non criminal activity towards the patient and consequently question on apprehension of any activity having nexus with section 315 IPC itself vanishes. Henceforth, in the above noted facts and circumstances of the charge U/s 315 IPC is to be altered. 4. Learned counsel for the revisionist mainly contended what are the grounds mentioned in the application. 5. Learned AGA and learned counsel appearing for opposite party no.2 raised preliminary objection about the maintainability of this revision and submitted that the order is interlocutory, so this revision is not maintainable. 6. It is clear from the material available on record that charges were framed against the revisionist-accused on the basis of material available on record. 5. Learned AGA and learned counsel appearing for opposite party no.2 raised preliminary objection about the maintainability of this revision and submitted that the order is interlocutory, so this revision is not maintainable. 6. It is clear from the material available on record that charges were framed against the revisionist-accused on the basis of material available on record. Although application has been moved for alteration of charge U/s 216 Cr.P.C. but actually its implication is discharge of the accused from the charge of section 315 IPC. It is no stage to give the finding that U/s 315 IPC is not made out on the basis of statement of any particular witness. Whether any offence is made out or not, is a matter of final adjudication which is to be analyzed and considered in view of the entire evidence available on record and not on the basis of any peace-meal evidence. So there is no sufficient ground to drop the charge of section 315 IPC at this stage only on the basis of statement of doctor. The application moved by the revisionist is misconceived and has rightly been rejected by the learned trial court. There is no merit in this revision and is liable to be dismissed. 7. Accordingly, the revision is hereby dismissed.