CRIMINAL APPEAL (SJ) NO.418 OF 2007 Against the judgement of conviction dated 24.02.2007 and order of sentence dated 27.02.2007 passed by Additional District & Sessions Judge, Fast Track Court-II, Sitamarhi in Sessions Trial No.162 of 2000 arising out of Sonbarsa P.S.Case No.91 of 1999, T.R.No.999 of 2000. SEIKH AHMAD.... .... APPELLANT VERSUS STATE OF BIHAR.... .... RESPONDENT For the Appellant: Sri S.N.Prasad, Amicus Curiae For the Respondent: Sri Ajay Mishra, A.P.P. P R E S E N T THE HON’BLE SHRI JUSTICE DHARNIDHAR JHA Dharnidhar Jha,J. The solitary appellant was charged with committing the murder of a child, namely, Gulshan who was aged about one and half months on the day of occurrence, by the learned Additional Sessions Judge-cum-Fast Track Court-II, Sitamarhi and was put on trial in Sessions Trial No.162 of 2000 by judgment dated 24.02.2007. The appellant was held guilty of committing the offence under Section 304 part-II IPC and was directed to suffer rigorous imprisonment for six years. The appellant has appealed to this Court to challenge the judgment of conviction. 2. The prosecution case is contained in the fardbeyan (Ext-2/1) of Md. Saim(P.W.5)who was 2 the father of the child. It was stated by P.W.5 that there was some dispute for a particular property, like, the residential house which was also being claimed by the appellant as the ancestral property. The informant had allegedly put on a lock at the doors of one room and the appellant came with a hammer and chisel and started cutting the lock that was objected to by the wife of the informant, namely, P.W.3 Mokima Khatoon. She had, undisputedly, the child in her lap. As soon as she raised the objection, it is alleged, the appellant attempted a hammer blow upon the lady P.W.3, but that accidentally fell on the child in the lap of the mother. The child fell on the ground and died. The appellant is said, thereafter, to have caught the lady P.W.3 by her hairs so as to drag her around and beat her up. It is stated that the baby had died and the mother P.W.3 cried that her baby had been killed. In the meantime, the appellant had cut and removed the lock put up on the doors of the house and went back. 3. It was further stated that the appellant came to the house of the informant at about 9 P.M. and started pelting stones at his house and it continued till 12 P.M. In spite of 3 raising the alarm the informant could not get any assistance from any one as no one turned up and as such he approached the Superintendent of Police, Sitamarhi at his residence on 06.11.1999 in the morning, but by that time the baby had died. On the basis of Ext-1, the FIR of the case was drawn up and the investigation was under taken by S.I. Sushil Kumar Gupta(P.W.7) who stated that he inspected the place of occurrence and recorded the statements of witnesses as also sent the dead body of the child for postmortem examination and finding the material sufficient sent up the solitary appellant for his trial. 4. The defence of the appellant was that he had falsely been implicated in order to exerting criminal pressure upon him so that the appellant would relinquish his claim over the property. 5. Two witnesses examined in support of his case who stated that the child had not been killed rather P.W.5, the informant ran to assault his wife for some petty reasons and when the wife was running to save herself the child fell over the ground from her lap and died. 6. After drawing my attention to the evidence of different witnesses and specially to 4 the evidence of the mother of the child and her father, it was contended that there was no definite evidence as to which part of the body of the deceased child was hit by the hammer blow given by the appellant and even if assuming that the blow had fallen on the temple of the deceased child, the medical evidence of P.W.8 appears not supporting the allegation. Not only that the conduct of the prosecution witnesses specially that of the mother and her father appears not above board and they probably were brooding over the situation and were probably thinking out a plan to implicate the appellant falsely. The contention also was that the conduct of the witnesses makes them not fit to be relied upon. The evidence on record indicated that the charge was not proved. It was contented lastly, that there was no seizure of hammer from the possession of the appellant and the child appears not dying of the cause alleged rather the child might have died due to any other reasons. 7. It is consistently stated by P.Ws.1, 2, 3, 4 and 5 that the appellant came with a hammer and chisel to remove the lock which had been put up by the informant. P.Ws.3 and 5 were on the doors of a particular room of the house. The 5 evidence of witnesses indicates that the property had been inherited by the informant from her mother’s mother and the appellant was also the son of one of the sisters of mother of P.W.5. The appellant had come prepared on the day of occurrence to take possession of the part of the house by removing the lock and thereby to enter inside it. The story further is consistently corroborated by witnesses that the wife of the informant, namely, P.W.3 Mokima Khatoon was putting up a stiff resistance to the acts of removing the lock by the appellant and while facing resistance, the appellant was infuriated and ran to wield a blow with a hammer on to the lady, but the hammer fell on the child in her lap and she was injured. As regards the evidence of witnesses, P.W.3 the mother of the child does not state in examination-in-chief as to what part of the body of the child was hit by the hammer but in cross-examination in paragraph-6 she stated that the hammer fell on the right temporal region of the child and the child was badly injured. P.W.5, the informant of the case and the father of the child stated that the appellant attempted a blow with a hammer on P.W.3 Mokima Khatoon, but it missed her and fell on the child but he was also 6 not sure as to whether it had fallen on the right or left temple of the child. However, he stated that as soon as the child was hit a lacerated injury was caused. P.Ws also stated that after having wielded the blow with the hammer, the appellant had caught hold of the lady by her hairs and had pulled her around. Some of the witnesses were suggested that the lady was running and in that course she lost control of the child in her lap which fell down on the ground and was injured and subsequently died. 8. Thus, what appears from the evidence of P.Ws.3 and 4 is that the hammer had fallen on either of the temples of the child and no part of the child had been hit by any blow which could have been given by the appellant. 9. The above evidence appears not getting support from the medical evidence of P.W.8 Dr. Ashok Kumar Singh who had held postmortem examination on the dead body of Gulshan who was aged about one and half months. P.W.8 had found following ante-mortem injuries on the dead body of Gulshan:- (i)Bruise over right temporal region measuring 1”x1/2”. (ii)Lacerated wound on right ulnar region 7 measuring 1 ½”x1/2x skin deep with radish margin round the wound. 10. On dissection, P.W.8 found no damage to the brain matter or to the skull bone and rather found the liver of the child lacerated and that probably was the cause of her death. 11. Thus, the evidence of P.W.8 does not lend support to the evidence of other P.Ws. generally and specially to that of P.Ws.3 and 4 that the blow wielded by the appellant with hammer had fallen on the temple of the deceased. It is true that injury no.1 was simple and was not the cause of death and the cause of death, that’s the laceration of the liver, was as a result of injury no.2. There is no evidence that the appellant had either repeated the blow with hammer and that repeated blow had fallen on some part of the body of the deceased child around her the region as a result of which the liver of the child was lacerated and she died. 12. Considering this anomaly in between the medical testimony and the oral evidence, I have no hesitation in recording that the manner of occurrence which was stated to by the witnesses appear not probabilized by the evidence of P.W.8. Of course, there were injuries but there was 8 definite evidence of witnesses that injury caused by the hammer blow on the temple of the deceased was the cause of her death and when this court finds no supporting evidence coming from P.W.8, then that part of the evidence and story becomes suspect. 13. This is the reason that Sri S.N.Prasad, the learned Amicus Curiae appearing on behalf of the appellant was strenuously arguing that this court reject the evidence in its entirety as the manner of evidence was improbablized and that inference could be reinforced by other circumstances also. 14. Sri Prasad was pointing out that as per the mother P.W.3, they remained unmoved in their house for three days when they went to the Superintendent of Police, Sitamarhi for lodging the report about the commission of the offence by the appellant. This evidence has come in paragraph-6 of P.W.3. However, her evidence in paragraph-11 indicates as if she and her husband had met the officer-in-charge of the police station who had himself come to the Darwaja of P.Ws.3 and 5. Sri Prasad was submitting, as such that it is very difficult to reconcile the delayed approach to S.P. and it further indicates the 9 conduct of the informant as regards their complaint against the appellant of killing her daughter. It was contended that in case the evidence of the witnesses were appearing suspect on account of the manner of occurrence being so, the evidence of the witnesses have to be rejected in the whole-sale because they appear definitely asserting facts in an attempt to establish an incident which had never occurred in the manner as was alleged by them. That way also, the court has to acquit the appellant. 15. I have already discussed the implications of the conflicting evidence of witnesses, like, P.Ws.3, 4 and 5 and that of P.W.8, the doctor. It does appear very difficult to hold that it could be an act of the present appellant of hurling a hammer blow which incidentally had killed the deceased child. There is definite evidence that the child was dead but the cause of death was not consistent with the allegation which may raise a probability that the manner of occurrence could have been something different. This was the reason that the court was pointing out to Sri Prasad that even rejecting the evidence of the prosecution on the manner of occurrence regarding the killing of the child by 10 the appellant, the appellant could be held guilty of indulging into the commission of the rash and negligent act and thereby causing the death of the deceased child and as such was pointing out to him as to why this Court could not convert the conviction of the appellant from 304 part-II IPC to 304A IPC. It was contended by Sri Prasad that this court cannot do it because the act which could be rash and negligent and which could be said to be committed by this appellant had to have a necessary nexus with the ultimate result of causing the death of a person. There being no such nexus on account of the very manner of assault being disbelieved, this court cannot convict the appellant under Section 304A IPC. 16. Sri Prasad was citing before me, in support of his contention, the decision of the Apex Court in Keshub Mahindra Vrs. State of Madhya Pradesh reported in 1996(6)SCC 129 in which the Apex Court was placing reliance upon an earlier decision reported in Kurban Hussein Mohd. Rangwalla Vrs. State of Maharashtra reported in AIR 1965 SC 1616. It was held that for constituting an offence under Section 304A IPC the necessary facts must indicate that the culpability of an accused was established on account of the 11 nexus between the act complained of and the death of the person caused due to the commission of that act. Not only that the act must also be established to be rash and negligent which necessarily means an act done intentionally and without applying due care and caution. On consideration of the very provision of Section 304A one could find that the act which could be rash and negligent has to be the reason for the loss of life of a person. Rash and negligent act has been known to connos unintentional act which was done without applying due care and caution and in some mental state of excitement. A person could be said to be rash and negligent when he has forgotten to have the control of his discretion over the act which he is indulging into and is further oblivious of the result the act might be resulting into. These are some of the parameters which I visualize as classifying an act as rash and negligent. 17. Coming to the facts of the case, even assuming that the witnesses were trustworthy the initial fact is that the appellant had come with some instruments for cutting and removing a lock. Thus, the intention was very much there of taking the possession or throwing the informant out of 12 the possession of that room. On being obstructed the appellant was simply attempting to repel the obstruction which was to impede the act of removal of the lock and while so repelling the impediment which was coming in his way, the appellant had dealt a blow not on the child but to her mother. Incidentally, the hammer is said to have fallen on the child and the child was injured on that account. Thus, the act could not be said to be rash so as to causing death, as the act of giving the blow was intended as regards the death of the child, which was simply to repel the impediment which was about to come or which had really come to impede the act of the appellant in removal of the lock. It was simply accidental that the child was hit, if it is believed as such, then it may be found that there was no direct nexus about giving or dealing a hammer blow and the death of the child. The hammer blow was never intended to be given so as to killing the child, I have already noted it to be targeted on repelling the impediment which was coming in way of the appellant. 18. Thus, on appreciating the evidence which was available on the lower court record what I conclude is that there was a lot of room to 13 doubt the manner of occurrence as was alleged by the prosecution and it appears that the learned trial Judge had fallen in error in reading the provisions of Section 299 and 300 and applying them to the most striking features of the case so as to falling further in error in recording the conviction of the appellant. 19. In the result, the appeal succeeds and the appellant is acquitted of the charge for which he was convicted after being given benefit of doubt. The appellant is in custody. He shall be released forthwith, if not wanted in any other case. Patna High Court, Dated, the 25th of August, 2011, Brajesh Kumar/AFR. ( Dharnidhar Jha,J.)