CRIMINAL APPEAL No.526 OF 2002 --- Against the Judgement and order dated 18.5.2002 passed in Sessions Trial No.203 of 1997/ Trial no.268 of 2001, passed by Shri Kapildeo Sharma, Presiding Officer, Additional Court, Katihar. SADIKA KHATOON @ SIDDIQUE KHATOON----(Appellant) Versus STATE OF BIHAR----------(Respondents) For the Appellant :- Mr. Arun Kumar Tripathi (Amicul Curie) For the State:- Mr. Lala Kailash Bihari Prasad, Sr. Advocate P R E S E N T THE HON'BLE JUSTICE SMT. MRIDULA MISHRA THE HON'BLE MR. JUSTICE SYED MOHAMMAD MAHFOOZ ALAM Mridula Mishra & Mr.S.M.M.Alam,JJ Sole appellant Sadika Khatoon alias Siddiqua Khatoon has been convicted by the Additional Court-1, Katihar in Sessions Trial No.203/97/Trial No.268/2001 under Section 302 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life. 2. P.W.5 Muslimuddin is the informant of the case. He is husband of appellant Sadika Khatoon who is his second wife. The facts revealed in the fard beyan of P.W.5 is that in the last Aghan first wife of informant died and he solemnized his second marriage with the appellant Sadika Khatoon alias Siddiqua Khatoon. The informant had three issues from his first wife i.e two sons Rafikul aged 8 years, Safiqul aged ½ years and a daughter Sanjeeda aged 6 years. His second wife frequently used to go to her parents house for which the informant used to chastise her. She had returned back from her - 2 - parent’s house on Saturday and on Tuesday informant with his daughter went to his sister’s village Murgatoli on 15.4.1997. He left his two sons with his second wife. Before leaving his house he asked his second wife to properly feed children and make them to sleeps.. In the night he stayed at his sister’s place. On 16.4.1997 early in the morning informant’s brother Sainul came and informed that his younger son Safiqul has been strangulated to death by his second wife. Immediately thereafter he came to his house where his wife on being asked disclosed that she has strangulated his son Safiqul. His elder son Rafiqul also disclosed that at the time of ajan Sadiqua Khatoon strangulated Safiqul which was objected by him and he was asked to keep quite otherwise he would also be killed. 3. The case was investigated. Appellant charge sheeted and case was committed to the court of Sessions. Her defence was of innocence and false implication. 4. Altogether five witnesses were examined by the prosecution to prove the charge. P.W.1 is Dr. L.N.Mandal who has conducted post-mortem and submitted post mortem report. As per the post-mortem report cause of death was asphyxia due to strangulation by pressing the neck. The doctor P.W.1 in his evidence stated that the neck might have been pressed by hand. P.W. 2 Sk. Moinuddin is the uncle of the informant. He has stated that in the morning when he came out of his house he saw many persons visiting house of Muslimuddin. He asked from the people and came to know that the second son of Muslimuddin has been strangulated. He himself went to - 3 - the house of Muslimuddin where Sadiqua (appellant) accepted before him that the boy has been killed by strangulation and she has did it. P.W.2 in his evidence has stated that the appellant is the second wife of Muslimuddin and her age is 181-19 years. It has also been disclosed by P.W.2 that the appellant used to look after the children properly. P.W.3 is a seizure list witness. He has also stated that the appellant is the second wife of Muslimuddin and after the appellant went to jail Muslimuddin has solemnized his third marriage. P.W.4 is a formal witness. The informant has been examined as p.W.5 but he has not been cross examined. P.W.5 has not disclosed anything in his evidence. He has not even supported his own statement in the F.I.R. that Sadiqua had made confessional statement before him that she herself has strangulated Safiqul, the second son of Muslimuddin. Only eye witness is Rafiqul who is elder son of the informant but has not been examined. I.O. has also not been examined. 5. However, there is extra judicial confession of the appellant and also circumstances indicating that she is responsible for killing the infant who was aged one and half years of age. The circumstances also indicates that both sons of the informant were left under the guardianship of Sadiqua Khatoon. She was alone with them in the house. No other person visted the house as such she can only be held responsible for killing of the child. Though these circumstances are there but evidence on record do not show that the act of strangulation was pre meditated act of the appellant. The evidence on record show that the appellant herself was a lady of - 4 - tender age of 18-19 years. She was second wife of informant and suddenly after her marriage was burdened with responsibility of looking after three children at this tender age. The evidence of P.W.2 show that she used to look after properly her steps sons and daughter. The post mortem report of child indicates that on dissection the stomach of deceased was found empty. This shows that the infant of one and half years might have started crying out of hunger which caused irritation to the appellant. She became agitated and lost her tamper and power of self control. Being deprived of self contrll and provocation, she in order to silence the child, strangulated him. Act of appellant seems to be un intentional. After the occurrence she did not leave the place and did not try to blame any other person for this act but herself disclosed to the brother and uncle of the informant that she has killed the child by strangulation. 6. The circumstances and evidence on record bring this case within the purview of exception (1) of 300 of the Indian Penal Code and the offence committed by the appellant under Section 304 Part I of the Indian Penal Code. Accordingly the conviction of appellant under Section 302 of the Indian Penal Code is set aside and the appellant is convicted under Section 304(1) of the Indian Penal Code. 7. The appellant is in custody since the date of occurrence i.e. 16.4.1997. She has remained in custody for more than 11 years. Her sentence is reduced to the period already undergone. 7.With aforesaid modification this appeal is dismissed. The - 5 - appellant is directed to be released forthwith, if not required in any other case. (Mridula Mishra, J) (Syed Md. Mahfooz Alam, J) Patna High Court, The 23rd September, 2008 N.A.F.R./SSS