CRIMINAL APPEAL No.492 OF 2005 (Against the judgment of conviction and order of sentence dated 29.08.2005 and 30.8.2005 passed by Additional Sessions Judge-cum Fast Track Court No. 3, Kishanganj, in Sessions Trial No. 301/2000/Tr No.3). MD.AKALU---------------------------- -----(Appellant) Versus STATE OF BIHAR----------------- ---(Respondent) ----------- For the appellant: Mr. Sarangdhar Jha, Adv. For the State : Mr. S. N. Prasad, A.P.P. P R E S E N T THE HON'BLE MR. JUSTICE C.M.PRASAD C.M. Prasad, J. This appeal is against the judgment of conviction and order of sentence dated 29.8.2005/30.8.2005 by Additional Sessions Judge-cum- Fast Track Court No. 3, Kishanganj as passed in Sessions Trial No. 301/2000/Tr. No. 23 of 2003 whereby the appellant has been convicted under Section 304 of the Indian Penal Code and sentenced to R.I. for ten years and a fine of Rs. 5000/- and in default of payment of fine to undergo simple imprisonment for three months. 1. The appellant Md. Akalu is full brother of the informant Amiruddin who along with his injured wife Praveen and Sala Amirul Haque carrying dead boy of his deceased daughter Ashera aged about 8 months came to Bahadurganj P.S. on 21.6.1998 at 4:00 P.M. and gave his statement that in the preceding night at 10:00 P.M. while it was raining heavily, he (informant) went to get door of his room in his house opened in order to tie his cow which was tied in the 2 Aagan and that at that time Akalu (appellant), Jalal, Saberun Nissa and Saimoon Nissa who lived in the same Aagan, abused him and protested to the opening of the door of the room. Seeing the melee his (informant’s) wife tried to flee away from there and the appellant Akalu tried to catch hold of her and he also assaulted with a Fatti on her head as a result of which, she fell down with her girl child Ashera. Then Akalu pressed neck of the girl child and he fled away. Thereafter, the girl child was hardly breathing there. The informant went to Dr. Kaisher and Dr. Nuroo to call them for attending the girl child but they refused to come. He (informant) returned his house and found that the child was dead. 2. As many as 8 witnesses were examined by prosecution. The accused/appellant also examined defence witnesses. Out of the prosecution witnesses, P.W.1 Sahnaz Begum, the sister of the informant, P.W.2 Nazmera Begum, P.W.3 Noordana Begum and P.W.4 Yasmin who were the neighbours turned hostile and they did not support the prosecution case saying that they knew nothing about the occurrence. It is worth noticing that while P.W.1, a hostile witness was being cross-examined on behalf of the prosecution, the A.P.P. drew her attention towards her previous police statement that on being called by Akalu (Appellant) she had gone to the house of informant Amiruddin and had found that he (informant) was breaking door in the house and that in course of breaking, a scuffle took place between the informant and the appellant and that due to the scuffle, the informant became 3 incensed and he started assaulting his wife and then after cry of the informant’s daughter (deceased) was heard and hearing this, the mother of the informant (grand-mother of the child) went there and finding the child fallen on ground brought her in the house and thereafter, it was heard that the inmates were weeping saying that the child died. 3. The P.W. 6 Neekhat Praveen, the informant’s wife and P.W.7 Md. Amiruddin, the informant are the only two witnesses who were the parents of the deceased child, have supported the case of prosecution. 4. P.W. 8 Shankar Lal Ramdas is the doctor who was one of the three members of the medical board who had conducted post-mortem examination on the dead boy of the deceased child. The investigating officer of the case was not examined by prosecution. 5. The doctor (P.W.8) testified that on 22.6.1988 he was a member of the Medical Board conducting post-mortem of the deceased child Ashera Begum aged 8 months and on post-mortem followings were found:- (i) Average built eyes, mouth closed. R. M. absent in all limbs, decomposition in process. Blisters and peeling of skin over track, neck face and upper extremities. (ii) Neither external nor internal anti- mortem injury present. (iii) Lungs congested, hearts all 4 chambers contained a little amount of blood. (iv) Stomach contained about 13 M.L liquid substances. (v) Liver congested and in process of decomposition. (vi) Spleen congested and decomposing. (vii) Kidney congested, scalp skull, vertebra membrane, brain and spinal cord, walls ribs, cartiledge, thorax, plura, larynx, trachea, pericardium, walls of abdomen, peritoneum, tooth esophagus, bladder and generative organs- all found N.A.D. (ix) Following viscera were preserved in two separate glass jars, containing S.S. of common salt, Jar No.1 contained- stomach with it contains, Jar No.2 contains a portion of heart, lungs, liver, spleen, intestine, and one kidney. (x) Time passed since death within 48 hours. In the opinion of the doctor definite cause of death could not be ascertained, however viscera was preserved for chemical analysis, if required by police. The post-mortem report was proved as Ext. 1. In cross-examination at para-12 the doctor stated that any external or internal mark of violence was not seen on the 5 deceased’s body including the neck. The doctor’s evidence is that viscera was preserved for chemical analysis, if required by police. Nothing has been brought on record to show that the viscera was sent by police for any chemical examination. 6. The informant Amiruddin, P.W.7 deposed that on 20.6.1998 at 10:00 P.M. Md. Akalu (appellant), Jalal, Sabrul and Saiman had locked his house and when he tried to unlock it they all started abusing him and at that time his wife (P.W.6) was standing there and, Akalu (appellant) assaulted on her head with a Fatti. Due to this blow the child (deceased) who was in the lap of his wife (P.W.6) fell down on ground and then Akalu (appellant) pressed the neck of the child as a result of which, the child died. He further stated that he brought the child in his house and went out to call a doctor but due to being night hour, the doctor did not come to attend the child and that the child died. Then he further deposed that he went to the police station and lodged an F.I.R. there. At para-13 of the cross- examination, he stated that he had returned after 15 minutes when the doctors had refused to come to his house. Thus, the informant states in his evidence that it was due to the appellant assaulting his wife and that the child (deceased) had fallen down from the lap of her mother as result of the fall and throttling the child died. The informant has stated in the F.I.R. that the appellant had assaulted on the head of his wife (P.W.6) with a Fatti but any injury report with respect to such injury has not been brought on record. 6 7. The informant has stated in the F.I.R. that while he tried to tie his cow of his room, the appellant and other accused had abused him and due to this the occurrence had taken place in the manner that the appellant had assaulted on the head of his wife with a Fatti but in his evidence in Court the informant he gives a go by to the story of tying cow as the initial cause for the occurrence and he stated a different story that the appellant and other accused had locked his house and that when he tried to unlock the house, the occurrence of assault on his wife took place. 8. The P.W.6 Neekhat Praveen is the wife of the informant (P.W.7). She deposed that while her husband (informant) went to tie his cow, the appellant and other accused abused him and the appellant Akalu assaulted her on head with a Fatti as a result of which, the child fell down from her lap and then the appellant Akalu pressed the neck of the child as a result of which the child died. At para-3 of the cross-examination she has admitted that she is on inimical terms with the appellant and other members of the family. In her examination-in-chief, she has stated that when the child had fallen down from her lap and the appellant had pressed her neck, she had become unconscious. It appears that she means to say that when she received injury on her head and when the child had fallen on ground she become unconscious. Thus in the circumstance, a doubt arises whether she had a definite opportunity to see the occurrence of pressing of the neck of the child by the appellant as stated by her. 9. The learned counsel for the appellant 7 submitted that in this case the P.Ws. 6 and 7 who are the parents of the deceased child and who are on inimical terms with other members of their family, are the only witnesses who have supported the case of prosecution. It was further submitted that the P.Ws. 1 to 5 who are the family members and neighbours of the informant did not support the case of prosecution and they all have turned hostile saying that they knew nothing about the occurrence. The learned counsel for the appellant submitted that it is a definite case of prosecution that the appellant had pressed the neck of deceased child as a result of which she died. In this context, the learned counsel referred the medical evidence as adduced by the doctor (P.W.8). 10. It is in the doctor’s evidence in para-2 that neither external nor internal ante-mortem injury was present on the deceased. At para-8 of the evidence, the doctor deposed that nothing abnormal was detected in the thorax, plura, larynx and trachea. At para-12 of cross-examination the doctor further deposed that any external or internal mark of violation was not found on the body of the deceased including neck. Thus, the doctor does not find any external or internal injury over the body of the deceased. Besides this, on internal examination after dissection nothing abnormal was detected in the thorax, plura, larynx and trachea of the deceased. 11. The prosecution case is that when the appellant assaulted the informant’s wife (P.W.6) on her head with a Fatti, the child fell down on ground and then the appellant pressed her neck as a result of which the child died. The 8 appellant has been charged for causing death of the child in the aforesaid manner. Now in order to hold the appellant guilty for the charges, it must be proved that the acts committed by the appellant were in any way responsible for causing death of the child. The learned A.P.P., submitted that the child had died due to the fall and the subsequent act of the appellant in that manner that he pressed neck of the child as stated by P.Ws. 6 and 7 but learned counsel for the appellant submitted that there is no material to hold that the appellant did cause the death of the child in the aforesaid manner. 12. Firstly when the prosecution evidence is considered it is found that the informant and his wife, the parents are the only witnesses and who are the most interested witnesses and admittedly they were on inimical terms with the other members of the family including the appellant. The prosecution tried to examine several witnesses namely, P.W. 1 to 6 who include the family members and neighbours of the informant, none of them corroborated the testimony of the informant and his wife and they did not support the case of prosecution. In such view of the matters, when the informant was on inimical terms with other members of his family including the appellant and when no other witnesses came to support the prosecution case the evidence of informant and his wife namely, P.Ws. 6 and 7 who are the only witnesses requires to be examined with great care and caution. 13. The P.Ws. 6 and 7 say that as a result of assault by the appellant on the head of P.w.6 by means of Fatti 9 the girl child fell down on ground and thereafter, the appellant pressed neck of the child and thereby death was caused. In this situation, death is said to have been caused due to the two circumstances:- One is the fall of the child on ground and the other is pressing of the neck of the child by the appellant. 14. The learned counsel for the appellant argued that the death was not caused in the manner as alleged by prosecution but it was caused otherwise and that due to enmity the informant implicated the appellant and other members of the family. The learned counsel also submitted that the informant had also implicated his mother aged 80 years, his one another brother and brother’s wife and they also were tried by the trial court but they were acquitted there. 15. In order to consider whether the appellant can be said to have caused the death of the child in the mater as alleged by prosecution, the medical evidence is very much important for consideration. The doctor has not found any external or internal injury on the body of the child. Even on internal examination after dissection nothing abnormal was detected in the thorax, plura, larynx and trachea of the deceased and any cause of death was also not ascertained. Thus, when there was no external or internal injury on the deceased child, the prosecution story that the child had fallen on ground and thereby death was caused by the pressing of the neck at the hands of the appellant is discredited. In view of there being no external or 10 Patna High Court, dated30th July, 2010 NAFR/Ravi/- internal injury, it is not acceptable that the death of the child was caused in that manner as alleged by prosecution, inasmuch as, some injury is necessarily to occur in causing death in the manner as alleged by prosecution. Since there was no injury, there is no ground to believe that the death of the deceased child was caused at the hands of the appellant in the aforesaid manner as alleged by prosecution. 16. In such view of he matters, I find that the charge has not been proved beyond doubt and the appellant is entitled to benefit of doubt. Thus giving benefit of doubt, the appellant is acquitted of the charge. The judgment of conviction and sentenced as passed by the learned trial court is hereby set aside. This appeal is allowed. Since the appellant is in custody he is directed to be set at liberty forthwith, if not required to be detained in any other case. (Chandra Mohan Prasad, J.)