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Madhya Pradesh High Court · body

1991 DIGILAW 528 (MP)

State of M. P. v. Nizamuddin

1991-12-12

S.K.DUBEY

body1991
ORDER This is a revision under sections 397 and 401, Criminal Procedure Code, 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, Indian 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 on 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 phyxia 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 27th March 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, who restatements 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 CS. Dixit, Dy. 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 CS. Dixit, Dy. Govt. Advocate for the applicant/Suite, and Shri Rakesh Saxena, counsel for the non-petitioners, were heard. Record perused. 4. After hearing counsel, I am of opinion that the order of discharge of the non-petitioners No.1 and 3 cannot be sustained, while the prosecution against non-petitioner No.2 Rehman deserves to be quashed. 5. True, while exercising jurisdiction under S. 227 or acting under S. 228, Cr. P.C, a Judge cannot act merely as a post office or a mouth-piece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced, any basic infirmities and find out whether a prima facie case against the accused has been made out. At this stage, the truth, veracity and effect of the evidence are not to be meticulously judged, and the standard of test, proof and Judgment for finding the accused guilty or otherwise is not to be applied. If the Court, on consideration of the material and documents, forms an opinion that the accusation made against the accused is not frivolous and there is some material or ground for presuming prima facie that the accused has committed an offence, the Court has to frame a charge. (See Radhey Shyam's case, AIR 1990 SC 121 and Mohd. Akbar Dar's case, AIR 1981 SC 1548 ). 6. The effect of S. 227 and 228, Cr. P.C., was considered by the Apex Court in case of State of Bihar v. Ramesh Singh, AIR 1977 SC 2018 , where their Lordships observed in para 4: "Reading the two provisions together in juxtaposition, as they have got to be, it would be clear that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the Prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under S. 227 or S. 228 of the Code. At that stage the Court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial -stage is not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not. If the evidence which the prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross- examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. An exhaustive list of the circumstances to indicate as to what will lead to one conclusion or the other is neither possible nor advisable. We may just illustrate the difference of the law by one or more example. An exhaustive list of the circumstances to indicate as to what will lead to one conclusion or the other is neither possible nor advisable. We may just illustrate the difference of the law by one or more example. If the scales of pan as to the guilt or innocence of the accused are something like even at the conclusion of the trial, then, on the theory of benefit of doubt the case is to end in his acquittal. But if, on the other hand, it is so at the initial stage of making an order under S. 227 or S. 228, then in such a situation ordinarily and generally the order which will have to be made will be one under S. 228 and not under S. 227." 7. True, the present case rests on circumstantial evidence. There is evidence of last seen, evidence of ill-treatment and compulsion by non-petitioner No.1 of the deceased to live as his wife, and the evidence of recovery of articles. That evidence is suggestive of motive, coupled with the fact that the death is homicidal. In such circumstances, mere writing of a laconic order without discussing the statements of Mustmi and Ummedkhan or without discussing the inconsistencies therein, which relate to accused Nizamuddin and Shahabuddin taking Munni towards the 'Nala,' and thereby failing to form an opinion of the legal evidence, is neither here nor there. It is clear from S. 227 that for arriving at a decision of discharging an accused on consideration of material, a Judge has to record reasons for so doing, which is mandatory. The object of the provision is to enable the superior Court to examine the correctness of the reasons for which the Sessions Judge has held that there is or is not sufficient ground for proceeding against the accused. The High Court, therefore, is entitled to go into the reasons given by the Sessions Judge in support of his order and to determine for itself whether the order is justified by the facts and circumstances of the case. (See State of Karnataka v. L. Muniswamy, AIR 1977 SC 1489 ). 8. The High Court, therefore, is entitled to go into the reasons given by the Sessions Judge in support of his order and to determine for itself whether the order is justified by the facts and circumstances of the case. (See State of Karnataka v. L. Muniswamy, AIR 1977 SC 1489 ). 8. As discussed above, there is no reason at all given by the Additional Sessions Judge in the order for discharging the accused/non-petitioners, except writing four lines to the effect that evidence of the witnesses is not consistent with each other which was a premature assessment of evidence on wrong premises. I have examined the evidence of these witnesses, and do not find any inconsistency, nor the learned counsel for the non- petitioners/accused could point out any inconsistency in the evidence which is so inherent as to render the case of the prosecution frivolous. In the circumstances, the order relating to the discharge of non-petitioners/accused Nizamuddin and Shahabuddin, who are brothers, is quashed. 9. Coming to the order of discharge of accused Rehman, the other brother, though no reason for discharging him has been recorded by the Additional Sessions Judge, on going through the evidence of the witnesses, it is clear that none of them said that he has seen accused Rehman going together with the deceased. One witness, viz., Gaffar Khan, has stated that he saw Rehman and Nizamuddin coming from the bank of the 'Nala.' Except this, there is no evidence against Rehman of last seen, motive or recovery. Therefore, there is no legal evidence against accused/non- petitioner Rehman for presuming that he has committed the offence. It would not only be unjust and unfair, in the circumstances but would also be an abuse of the process of the Court if the prosecution against accused Rehman is allowed to continue. 10. Therefore, the order impugned so far as the accused/non- petitioners No. 1 and 3 Nizamuddin and Shahabuddin are concerned, is set aside and the case is sent back to the learned First Additional Sessions Judge for framing of charge against the accused/non-petitioners No.1 and 3 and then to proceed with the case in accordance with law. The prosecution against accused/non- petitioner No.2 Rehman is quashed. 11. In the result, the revision is allowed in the manner indicated hereinabove. The prosecution against accused/non- petitioner No.2 Rehman is quashed. 11. In the result, the revision is allowed in the manner indicated hereinabove. The accused-non-petitioners No.1 and 3 are directed to appear before the First Additional Sessions Judge, Morena, on 4.1.1992, where they will furnish fresh personal bonds of Rs. 10,000/- each with one solvent surety each in the like amount to the satisfaction of the trial Court for their appearance in the said Court till the conclusion of the trial. The record of the trial Court be sent back so as to reach the Court concerned on or before 4.1.1992.