High Court · 2012

The accused (Fakir Ali) along with his wife (Ramisha Khatoon) and their 8 months old son Intazul visited the house of his father-in-law to attend (cid:28)Nayer (cid:29) festival. He kept his wife and son in the house of his in-law’s and le ft the house. On 09-12-2003, he went to the house of his in-laws to bring his w ife. When he asked his wife to accompany his own house, his wife refused to go i n the absence of her father. The accused being enraged dragged his minor son fr om the lap of his wife and threw him on the ground. The infant sustained grievo us injuries and he was shifted to hospital. At about 7 P.M. he succumbed to his injuries. FIR being lodged, police registered a case under Section 302 IPC and investigation was started. On completion of the investigation, police submitted the charge sheet under Section 302 IPC against the accused appellant. 3]. m under Section 302 IPC and claimed to be tried. The accused-appellant pleaded not guilty to the charge framed against hi 4]. The prosecution examined altogether 11 witnesses in support of his case . The accused appellant, in his statement, recorded under Section 313 Cr.P.C., stated that the child accidentally fell down from the lap of his mother while a ttempted to take her his house. He pleaded that he was innocent. The learned tr ial Court held that the accused snatched away the child from the lap of his moth er and throwing him on the ground, which caused fatal injuries to him. The inci dent occurred in the heat of passion at the time of altercation with his wife, t here was no pre- mediation. Accordingly, the accused was convicted under Sectio n 304 Part-II IPC and sentenced as stated earlier. 5]. I have heard the learned counsel appearing on behalf of the appellant an d Mr. K. Munir, learned Addl. Public Prosecutor appearing on behalf of the State of Assam. It is submitted by the learned counsel for the appellant that th 6] e learned trial Court failed to appreciate that the death of the child was accid ental. The genesis of the occurrence was suppressed. The informant himself depo sed that on the date of occurrence, he lodged the FIR but the investigating offi cer collected another FIR, which was lodged on the subsequent date. The origina l FIR was suppressed. The FIR, on the basis of which, case has been registered was lodged after one day. The delay was not explained. There is contradiction as regards the place of occurrence also. The material placed by the mother-in-la w of the accused, who witnessed the occurrence, was not examined by the prosecut ion. 7]. PW-1, Md. Abdur Rahman is the father-in-law of the accused. He admitted in his cross-examination that the occurrence took place his absence. He stated that he lodged the FIR on the very day of occurrence. After the occurrence, th e accused was taken to the police station by the local people. PW-2, Ramisha Kha toon is the wife of the accused and the mother of the deceased child. She depose d that the accused came to her parental house and asked her to go with him. PW- 2 told him that after feeding the child, she will accompany him. In order to fe ed the baby, she warmed up the milk and it took time to feed the baby, the accus ed became furious and snatched away the child from her lap and dropped him on th e ground. She raised alarm and other people came. She stated that she was insid e the kitchen. PW-3, Nur Jamal also stated that FIR was lodged on the date of occurrence. When the accused dropped the child and left the place of occurrenc e. According to PW-3, the incident occurred in the courtyard of the house. He also stated that after throwing the child the accused ran away and he was chased by PW-3. The accused was brought to the police station and handed over to the police. 8]. PW-4, Mansur Ali, hearing the hue and cry from the house of the informan t, came there and found the child on the lap of his grandmother. PW-5, Mustt Lal Banu deposed that the accused caused injuries to the child by throwing him on t he ground. She stated that the occurrence took place while Ramisha was feeding m ilk to the child. Because of delay, her husband being enraged entered the kitche n and snatched the baby from the lap of her mother and threw him in the courtyar d. PW-7, Habibur Rahman came to the place of occurrence after the incident. He found the child in the lap of Ramisha. He took the child to the hospital where the child died. He admitted that he did not see the occurrence. PW-9, Hanif Ali and PW-11, Abdul Mazid witnessed the inquest on the dead body. PW-8, Dr. Nirmal Chandra Sarmah, who held post-mortem on the dead body o 9]. f the deceased child on 10-12-2003 at Mangaldoi Civil Hospital. His findings ar e as follows:- (cid:28)Dead body of a male baby, 8 months of age, fresh in condition, R.M. present in all limbs, Eyes and mouth closed, No discharge from uthra and anus. Swelling present in left side of head. 4cmX4cm. No other injury detected. Scalp-Swelling left side on mastoid region. Skull-Fracture of Parietal left mastoid region. Blood collection present below scaop left side. Membrane-Lacerated left side. Subarachnod haemorrhage present. Brain and spinal cord-congested (left parietal lobe. Other organs healthy) The injury is ante mortem. (cid:29) In the opinion of doctor, the death was due to shock and haemorrhage as a result of injuries sustained. The injury described above is sufficient to cau se the death of the baby in the ordinary course of nature. The doctor admitted t hat the injury may be caused by falling on hard substance with heavy force from a high place. 10]. PW-10, S.I. Sohrab Ali, investigated the case. In cross-examination, he admitted that on 09-12-2003 at about 9.00 P.M., the accused was brought by the local people to the police station. On 10-12-2003, the FIR was lodged. He also stated that no requisition was given from the police for the treatment of child . The case was registered on 10-12-2003. 11]. From the evidence of PW-1 and PW-2 as well as from the admission of in vestigating officer, it appears that on the date of occurrence itself, the infor mation to the police was lodged. The witnesses stated that the accused was hand ed over to the police in the night of the occurrence. The I.O. also admitted th at the accused was brought to the police station on the date of occurrence at 9. 00 P.M. The accused was detained by the police in the police station. PW-1 and PW-2 stated that the FIR was lodged on the date of occurrence itself. The inve stigating officer (PW-10) stated that he already received the written FIR on nex t day i.e. 10-12-2003. The subsequent FIR was, thus, acted upon as a First Info rmation Report. For the whole night, the accused was kept in the police station . The FIR, which was, first in the point of time, was withheld by the prosecuti on. 12]. Admittedly, the accused went to bring his wife and child to hi s house. He asked his wife to accompany him immediately. The learned trial Cou rt also held that the accused has no intention or motive to kill his child or ca use any injury to the child. The defence’ plea that during the scuffle between the accused and his wife, the child slipped from the lap of his mother, although it has not been proved. The suppression of original FIR creates a cloud of dou bt as regards the implicitly of the prosecution version. It appears that the ch ild was in the lap of his mother. There was some altercation between the accused and the wife, the accused, probably, being enraged and dropped his child on the ground. The death of the child occurred due to fall on the ground. Thus, the death of the child might be attributed due to negligence of the accused but the accused has no intention or motion to kill his child. The death was caused with out pre-meditation in the hit of passion upon sudden quarrel. The accused is th e father of the deceased child. He has already suffered imprisonment more than 5 years. 13]. Therefore, the sentence of rigorous imprisonment for 7 years, passed by the learned trial Court in Sessions Case No. 95(DM) 2004 under 304 Part-II IPC, is reduced to the period already undergone by him. The sentence to pay the amo unt of fine of Rs.3000/- in default to undergo rigorous imprisonment for another one month is upheld. 14]. With the aforesaid modifications, this appeal is partly allowed. 15]. urt below. Send down the LCR along with a copy of this judgment and order to the co