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Judgment
Seeking leave to appeal against the judgment dated 17.5.2013 passed by Seventh Upper Sessions Judge, Bhopal in Sessions Trial No. 99/13, whereby the respondent / non-applicant Mohd. Aziz @ Bhaiya Miyan has been acquitted for an offence u/s 302 /34 read with section 201 /34 of IPC, this application has been filed by the prosecution u/s 378(III) of Cr.P.C. It is the case of the prosecution that on 28.09.2012 at about 2:30 PM, at the place near Narmada Hospital, Main Road, Habibganj, Bhopal, the co-accused Mohd. Mustafa abducted and carried the prosecutrix in a red colour car, took her to an isolated place, committed rape on her and thereafter, killed her and threw away in an isolated place near village Budani. For the aforesaid offence committed by the co-accused Mohd. Mustafa and the present non-applicant Mohd. Aziz @ Bhaiya, have been prosecuted.
As far as, the co-accused Mohd. Mustafa is concerned; he has been convicted for the offences under Sections 302 read with section 376 of IPC and has been sentenced to capital punishment. As far as the present non-applicant Mohd. Aziz @ Bhaiya is concerned and he has been acquitted for both the offences, this application has been filed.
We have perused the findings recorded by the Trial Court and the material available on record. So far as implication of the non-applicant Mohd. Aziz @ Bhaiya is concerned, the only evidence available against the present non-applicant Mohd. Aziz @ Bhaiya is that he is said to have escorted the co-accused Mohd. Mustafa in a motorcycle when the co-accused had committed offence and was going for disposal of the dead body of the prosecutrix. It is said that the non-applicant Mohd. Aziz @ Bhaiya went in a motorcycle and helped the co-accused in disposal of the dead body. The only evidence against the non-applicant is the memorandum of co-accused and the seizure of a motorcycle. However, there is no other evidence to implicate him with the offence. He was never seen at the initial stage when the prosecutrix was abducted by the co-accused and the learned Trial Court has analyzed the evidence and came to the conclusion that except for the memorandum of co-accused, there is no evidence against the present non-applicant Mohd. Aziz @ Bhaiya, even the fact as to whether the motorcycle belongs to him or he was riding the motorcycle and as to how he ride the motorcycle, is not proved and merely on the basis of the memorandum of the co-accused, he cannot be convicted.
Taking note on the basis of the memorandum of co-accused, the present non-applicant Mohd. Aziz @ Bhaiya cannot be convicted and he has been acquitted and in doing so, we are of the considered view that no error or illegality has been committed by the learned court below warranting reconsideration of the matter. The offence is committed by co-accused Mohd. Mustafa and there is nothing apart from the memorandum of co-accused Mohd. Mustafa to implicate the present non-applicant in assisting him in disposal of the dead body of the prosecutrix. Accordingly, taking note of the aforesaid and the fact that there is some delay in filing this application also, we see no ground to grant any leave to appeal. Application is therefore dismissed.