IN THE HIGH COURT OF JUDICATURE AT PATNA
Cr.Misc. No.5777 of 2009
1. Md. Hasim, S/o Md. Md. Kari.
2. Jhoti Sada, S/o Late Mural Sada.
3. Nurhasan, S/o Sheikh Farman.
4. Md. Fafiqur, S/o Late Saraj.
5. Md. Shamshul, S/o Late Md. Hakim.
6. Md. Farukh, S/o Md. Kari.
7. Md. Najre Alam, S/o Md. Kari.
8. Md. Mukhtar, S/o Md. Mosim.
All resident of Village-Bahdura, P.S. Singhia, District-
Samastipur. ...................................Petitioners.
Versus
The State of Bihar ...........................Opposite Party.
For the petitioners :- Mr. Dharmendra Jha, Advocate.
Mr. Vinay Kumar Mishra, Advocate.
For the State :- Mr. Hriday Prasad Singh, A.P.P.
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3. 08.12.2010. Heard.
This criminal miscellaneous petition has been
filed for quashing the order dated 10. 11. 2008, passed
in Singhia P.S. Case No. 37 of 2008 whereby and
whereunder cognizance has been taken under Section
302 and 120 B/34 of the Indian Penal Code.
The prosecution as alleged in the Fard Beyan
by the informant Mukhtar that on 29. 03. 2008, he
went to house of his relation at Village- Navdga and
remained stayed and on 30. 03. 2008 at about 12 Noon,
his uncle Md. Hasim informed on telephone that his
wife is serious and he is taking her to Singhia for
treatment and asked to come Singhia. It is alleged by
the informant that he reached at Singhia, he did not
found his uncle and wife and again he received a call
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from his uncle then he was informed that his wife is
dead and then he reached to his house and saw the
dead body of his wife. The uncle of the informant
disclosed that his wife Tamanna Khatoon had gone to
watch maize field and in that field she was lying and her
mouth and nose was tied with her duppatta. In the
meantime one co-villager Heera Sada while returned
with her daughter heard the sound and went there
and found the deceased wife of Mukhtar, then Heera
Sada raised hulla and on hulla his uncle and other
came there and taken her to Singhia for treatment then
the victim died in way. It is further alleged that Md.
Raju and Md. Halim @ Mangnu, co-villagers threatened
that nothing has happen and threatened the
prosecution parties in the said case and it was claimed
that Md. Raju and Md. Halim in collusion with common
intention committed murder of his wife.
On the basis of Fard Beyan, F.I.R. was lodged.
During investigation a protest petition was also filed by
the informant Md. Mukhtar. However, charge sheet
was submitted against Md. Hasim and other petitioners
including the informant in two installments. Earlier
charge sheet was submitted against Md. Hasim, Md.
Noor Hasan, Md. Safique and Jhori Sada, thereafter,
against Md. Najre Alam, Md. Farukh, Md. Mukhtar
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(informant) and Md. Shamshul and cognizance was
taken by order dated 10. 11. 2008 and again by 10. 12.
2008.
Learned counsel for the petitioners however,
contends that on record to the occurrence for taking
cognizance under Sections 302 and 120 B/34 of the
Indian Penal Code, there is no iota evidence whatsoever
against these petitioners. However, accused persons
are also witnesses in the case. However, two sets of
witnesses, one set of witnesses have supported the
prosecution case about the occurrence and another set
of witnesses though, has stated that the husband of the
deceased may have murdered his wife, but they have
not seen the occurrence and they stated about
implication of informant, the husband on doubt.
However, in the entire case diary, there is no
eye witness of the occurrence. However, charge sheet
has been filed only on suspicion that the husband may
have murdered. However, except suspicion there is no
evidence whatsoever or circumstance to suggest or give
theory that chain of circumstance as such to infer
irresistible conclusion about the guilt of accused
persons and hence submission of the charge sheet and
even taking cognizance is merely on pure suspicion and
hence are based on conjecture and surmises. However,
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going into the case diary, there is no iota of evidence
and there is no circumstance or chain circumstance to
even create a strong suspicion however to take
cognizance on mere suspicion that husband may have
cause the death when there is no iota of any evidence
and a chain circumstance to suggest the guilt is abuse
of the process of Court.
Learned counsel for the State has submits
that even suspicion is made out a criminal prosecution
may continue. The learned counsel for the State
specifically mentioned paras 13, 14, 16, 17 and 18, but
those paragraphs no evidence against the accused for
their implication and mere suspicion without any iota
or evidence is not warranted in law.
Hence having regard to fact and
circumstance, there is no iota of evidence either direct
or circumstantial to infer the implication of the accused
and it appears that the order taking cognizance passed
without proper application of mind, hence the
impugned order taking cognizance is hereby set aside
and allowing the prosecution to continue without
evidence is the abuse of the process of Court. Hence
the impugned order taking cognizance is hereby set
aside and the criminal prosecution is quashed.
m.p. ( Gopal Prasad, J.)
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