Md. Hasim v. State Of Bihar

Gopal Prasad, J.:— Heard.

2. 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.

3. The prosecution as alleged in the Fard Beyan by the informant Mukhtar that on 29.03.2008, he Owent 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 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.

4. On the basis of Fard Beyan, F.I.R was lodged. During instigation 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 (informant) and Md. Shamshul and cognizance was taken by order dated 10.11.2008 and again by 10.12.2008

5. 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.

6. 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, 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.

7. 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.

8. 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.