- (1.) P. K. Jain, J. Heard Sri A. B. L. Gaur, learned counsel for the revisionist and learned A. G. A for State.
(2.) THE facts appear to be that on a report lodged by one Ram Prakash a case under Section 302, IPC 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 ac quitted. 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 wit nesses had filed their affidavits disowning the case of the prosecution, no charge may be framed against the revisionist and he may be discharged under Section 227, Cr. PC 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 contends that the witnesses examined at earlier Sessions Trial, viz. , 29 of 1990 did not nominate the revisionist as one of the ac cused 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 aprima facie case against the revisionist. The Court, therefore, committed error in not discharg ing the revisionist under Section 227, Cr. PC. 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 under Section 145 of the In dian Evidence Act. Affidavits filed by the witnesses can also not be treated as substan tive evidence. At this stage it is difficult to say as to what evidence the prosecution in tends to produce against the revisionist. The charge is framed on the allegations 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 ac cused. Statements given by certain witnesses at the trial of other accused persons, al though both the Sessions Trials arise out of the same incident, and acquittal of one of the accused persons at the earlier trial, can not bar trial of third accused at the sub sequent trial. Learned counsel for the revisionist has referred to the case of Nedeem alias 5. M Nusrotak v. State of U. P. (Criminal Misc. Application No. 11010 of 1988, decided by this Court on 22-10-1991 ). 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 illcit arms for which he was tried under Sections 25/27 of the Arms Act and was also found in pessession of property looted at the dacoity and was being subsequently tried for an of fence under Section 412, IPC. Me was ac quitted 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 find ing of fact, such finding of fact should con stitute 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 ac cused, 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.
(3.) THE revision is rejected. Stay order dated 1-2-93 is vacated. Revision rejected. .;