STATE OF MADHYA PRADESH Vs. NIZAMUDDIN

JUDGEMENT

(1.) This is a revision under Ss. 397 and 401, Criminal P. C., by the State against the order dated 11-12-1986, passed by Shri M.A.S. Khan, First Additional Sessions Judge, Morena, in S.T. No.178 of 1986, discharging the non-petitioners/ accused persons of the offence under S.302/ 34, Penal Code.

(2.) Brief facts leading to this revision are that non-petitioner No. 1 who is the uncle (PHOOPHA) of deceased Munni, lodged a report an 27-3-1986 at Police Station Bagchini, District Morena, of ' GUMSHUDI', that his niece Munni, wife of Ishaq Khan, who deserted her, left her house on 24-3-1986 in the morning; one Jalalluddin informed him that Munni is lying dead in a 'Nala', he went there and saw the dead body floating on the water of the 'Nala', but he is not aware how she has died. A case was registered as 'Marg' at Crime No. 2 of 1986. The dead body was sent for post-mortem. On autopsy the cause of death was found as asphyxia due to throttling, During investigation it revealed that non-petitioner Nizamuddin wanted to keep Munni as his wife, for that he used to beat her; lastly. she was beaten on 24-3-1986. In the intervening night of 26th and 27/03/1986. which was a moon-lit night, accused Nizamuddin and Shahabuddin were seen going with a woman towards the Idgah Graveyard near the 'Nala', and on the morning of 27th the dead body of Munni was found in the 'Nala' by witnesses Mustari, Ummedkhan, Gaffar Khan and Abdul Shakir. The non-petitioners/accused were taken in custody and, after investigation, the charge-sheet under S. 173, Cr. P.C., was filed; the accused persons were committed by the Judicial Magistrate, First Class, Jaura, to the Court of Session for trial. The learned Additional Sessions Judge, on consideration of the record of the case and documents and after hearing the accused and the prosecution, found that there is no sufficient ground for presuming that the accused persons have committed the offence for proceeding against them by framing a charge; that the case rests on circumstantial evidence of Mustari, Ummedkhan and Gaffar Khan, whose statements recorded under S. 161, Cr. P. C., are inconsistent with each other; the recovery of articles at the instance of the accused persons is not relevant and, thus, discharged the accused persons. It is this order which has been challenged in revision by the State.

(3.) Shri C. S. Dixit, Dy. Govt. Advocate for the applicant/state, and Shri Rakesh Saxena, counsel for the non-petitioners, were heard. Record perused.