MOHD RESHI Vs. AZIZ SHEIKH

JUDGEMENT

(1.) THIS revision is directed against an order passed on 28 -11 -1979, by the learned Addl. Sessions Judge, Srinagar. The material portion of the order reads as under: The counsel for the defence argued before me and explained the facts of the case whereby he submits that the accused No 1 Aziz Sheikh cannot be charged under Section 302 RPC on the basis of the evidence which has been recorded against him by the police. In this connection he has referred to the statement of Mst. Zonni, wife of the accused No. 1 and urged before the court that the said witness has however, of her own admitted that the deceased was indulging in adultery with her and had also on more than one occasion indulged in intercourse with her, This is the statement which he has given before the Magistrate under Section 164 Cr. P. C. The learned counsel for the accused stressed before the court that this mis -behaviour of the deceased was enough to shock and provoke the accused to commit the crime by inflicting a blow by a wooden club (Dugnoo) on the deceased that the evidence on record fully establishes the fact that the accused had no intention to kill the deceased but he had only under sudden provocation and shock inflicted a blow on the deceased as he had mis -behaved throughout with his wife which could not be tolerated by him.

(2.) IN these circumstances, the defence counsel has urged that the accused Aziz Sheikh may be charged under Section 304 RPC. The learned A.P.P. has opposed this point. At the close of the arguments, the learned A.P.P. made an application to the court whereby he sought pardon for the accused namely Mohammed Yussuf and submitted that the prosecution wants to cite him as a witness in this case as he is a co -accomplice and will help the prosecution in seeking the conviction against the accused. The Statement of the accused was recorded and he has stated that he was co -accomplice in the commission of the crime and will give truthful statement if he is made an approver in the case. In view of the statement of Mohamad Yussuf accused, pardon is granted and he is allowed to make a statement before the court. The accused Mohd Yussuf is thus deleted from the list of the accused and the prosecution is at liberty to cite him as a witness in the case.

(3.) IN view of the facts discussed above, a prima facie case under Section 304 RPC is found established against Aziz Sheikh accused and an offence under Section 201/34 RPC is made out against the rest of the accused. Accordingly the accused Aziz Sheikh, Razak Rather, and Fateh Sheikh, are charged under Section 304/201/ 34 RPC, 201/34, RPC and 201/34 RPC respectively. The charge was read over and explained to the accused and they pleaded not guilty to the charge. The prosecution is now directed to produce evidence on the next date of hearing Put up on 11 12 -1979."