PUSHPA Vs. NIYAMAT MASIH

JUDGEMENT

(1.) The complainant has filed the present application under Section 378(4) Cr.P.C., 1973 for grant of special leave to appeal against the judgment dated 18.10.2016 passed by learned Sessions Judge, Pathankot, whereby the accused/respondent stood acquitted of the charges under Section 302 read with Section 34 IPC.

(2.) According to the prosecution, Avtar Masih, Bittu and Niyamat Masih accused suspected Pawan Masih, since deceased, of having illicit relations with Baby wife of Avtar Masih accused. As such, the aforementioned three accused were nursing a grudge against Pawan Masih and always wanted to kill him. Those accused had warned Pawan Masih not to have illicit relations or carry on the same any more but Baby did not desist and kept on visiting Pawan Masih, which caused ill-will between Pawan Masih deceased and the aforementioned three accused.

(3.) Further case of the prosecution was that on 26.10.2008 Pawan Masih had gone to take medicine from Purana Taragarh. At about 3.00 p.m., the complainant, who was wife of Pawan Masih and Rani, wife of brother of Pawan Masih also left their house for going to Purana Taragarh and were at a distance of 200/300 yards when they saw Avtar Masih, Niyamat Masih, Bittu and one Tinku alighting from a Tata Sumo jeep. Avtar Masih, Bittu and Niyamat Masih picked up handles of kassis from the jeep, while Tinku was empty handed. Tinku, however, slapped Pawan Masih and caught hold of him from his arms. He pushed Pawan Masih down. Avtar Masih, Bitu and Niyamat Masih gave one injury each with their respective handles of Kassis to Pawan Masih, who fell down and became unconscious. All the accused forcibly put him in their vehicle and fled away. Pushpa and Rani raised an alarm but none came to their help. They returned to their house. About one hour later, Tarsem Masih told complainant Pushpa and Rani that the accused had thrown the dead body of Pawan Masih underneath a drain bridge. The matter was reported to the police which was followed by the police officials coming to the place where the dead body of Pawan Masih had been thrown and inquest proceedings were held. The police, however, refused to record the statements of complainant Pushpa and her sister-in-law Rani and as such, no action was taken against the accused. Left with no other option, the complainant filed a private criminal complaint on 29.11.2008. On the basis of the preliminary evidence examined by the complainant, the learned Judicial Magistrate summoned all the accused under Section 302 read with Section 34 IPC. Presence of Avtar Masih, Tinku and Bittu accused was procured, whereas Niyamat Masih accused could not be arrested and he was declared proclaimed offender. Charge under Section 302 IPC was framed against Avtar Masih, Tinku and Bittu, to which they pleaded not guilty and claimed trial. After conclusion of the trial, the aforementioned three accused, namely, Avtar Masih, Tinku and Bittu were acquitted of the charge by learned Sessions Judge, Pathankot vide judgment dated 7.11.2015. Subsequently, Niyamat Masih accused was arrested and he was charged to face trial under Section 302 read with Section 34 IPC.