Judgment:
Lakshman Uraon, J.
1. The sole appellant, Sarfuddin Mian, has filed this jail appeal against the conviction and sentence dated 27.9.1994, passed by Shri N.K. Pd. Sessions Judge, Hazaribagh in S.T. No. 513/93 under Section 302, IPC, sentencing him to undergo R.I. for life.
2. The prosecution case as per the FIR, Ext. 3, lodged by the informant.Muniza Khatoon, PW 5, of Village Nagri, PS Barkagaon, Dist. Hazaribagh, is that on 6.5.1993 she was returning home at about 11 a.m. alongwith her son, Saddam Hussain, aged about 3 years and when she reached in the gali near the house of Meghan Prajapati and Ramjan Mian, her husband-appellant, Sarfuddin Mian, went near her and asked her to withdraw the criminal case regarding the demand of dowry, instituted by her against him, falling which she and her child would be murdered. When she refused to withdraw the case, her husband, the appellant snatched the child from her and assaulted him with slippers and threw him on the ground as a result of which her child died at the spot. She started weeping and the neighbours rushed towards her and saw the child dead. Her husband (appellant) fled away from the P.O. The villagers tried to chase him but he also threatened them and fled away. He also threatened the informant that her fate will be the same as that of her child. She has alleged that her husband had resolem-nised his marriage and he was also demanding dowry from her (i.e., the informant). Regarding the demand of dowry, she had filed a complaint case in the Court in which her husband (appellant) was on bail. He was repeatedly threatening her to withdraw that case. When she refused then the alleged occurrence took place.
3. In this case the prosecution has examined altogether seven witnesses in order to prove its case for the charges levelled against the sole appellant under Section 302, IPC, in causing, the murder of his son, Saddam Hussain, PW 1, Dr. Vimal Kumar Verma, conducted the post-mortem examination on the dead body of three year old male child, Saddam Hussain, on 6.6.1993 at 1.50 p.m. and found the body highly decomposed. He found lacerated wound on right side of head 2' x 1.5' x brain matter deep fracture of right parietal bone and bruise mark on back 2' x 1'. He found entracranial haemorrhage with mark of blood clot present on right side of brain. The death was within 36 hrs. from the time of the post-mortem examination which wasdue to shock and haemorrhage on account of abovementioned injuries on the head. Ext. 1, is the post-mortem report of this witness. The evidence of PW 1, Dr. Bimal Kr. Verma, corroborates the ocular evidence of the informant. PW 5, Munlza Khatoon, was married five years ago with this appellant, Sarfuddin Mian, She gave birth to one son and one daughter. The son was named Saddam Hussain, aged about 3-4 years. After his remarriage he started to demand dowry from her and used to assault her. Due to the demand of dowry and assault on her, she instituted a complaint case against her husband (appellant), Sarfuddin Mian, This fact has been admitted by the appellant in his examination under Section 313, Cr PC that his wife, the informant, PW 5, Muniza Khatoon, had instituted a complaint case against him. She deposed that her husband was insisting to withdraw that case and when she refused while she was going in the lane with her son then her son was snatched and assaulted with slippers and was thrown by this appellant on the ground resulting his death. The demand of dowry has been supported by PW 4, Md. Hanif, who is the brother of the informant and PW 6 Manjur Hussain. Both of them have stated that when they were informed that the appellant threw his son resulting his death, they went to the P.O. and saw the dead body of Saddam Hussain. They were informed by the informant that her husband (appellant) caused the murder of her son. They went to Thana where the FIR was lodged on which PW 6, Manjur Hussain, signed, Ext. 2. PW 4, Md. Hanif, brother of the informant, has deposed that the informant was married with the appellant in the year 1987. The appellant started to demand Rs. 5,000/- and one cycle which she could not provide. A Panchaiti was also held. Thereafter, the appellant got married with the second wife, When the informant was being tortured for demand of dowry then she filed a complaint case. She refused to withdraw it even on threat given by her husband. PW 7, Arjun Ram, recorded the FIR of Muniza Khatoon, Ext. 3. He prepared the inquest-report in presence of the witnesses of the dead body of Saddam Hussain, Ext. 4 and sent the dead body for post-mortem examination. He found the P.O. towards south of the house of Ramjan Mian in the village Nagri. The village lane runs towards North to South. The other witnesses, PW 2, Magan Mahto and PW 3, Ismall Mian, are the hostile witnesses.
4. The learned omicus curiae assisting the Court for the appellant, has argued that there was no intention of the appellant to cause the murder of his son. All of a sudden when his wife, the informant, PW 5, Muniza Khatoon, refused to withdraw the compiaint case then he snatched the child, Saddam Hussain, assaulted him with slippers and threw him on the ground which was not premeditated. Hence at best it attracts Section 304, Part II, IPC.
5. The learned APP has submitted that the defence has tried to take the plea that three-year-old boy, Saddam Hussain, fell down, sustained Injury and died. But this defence could not be substantiated by any defence witnesses and the finding of the learned Court below is based on the reliable evidence of the mother (informant), PW 5, of the child supported by the medical evidence and the I.O. of this case and the learned Court below has rightly convicted and sentenced the appellant, Sarfuddin Mian.
6. The informant, PW 5, Muniza Khatoon, is the first wife of this appellant. He got one son and one daughter through her. The son named Saddam Hussain was aged three years at the time of the alleged occurrence. Sarfuddin Mian got married with the second wife and thereafter he started to demand dowry which has been supported by PW 4, Md. Hanif, brother of the informant, that even on demand he could not provide cash amount of Rs. 5,000/- and one cycle to the appellant. The genesis of the alleged occurrence is regarding the demand of dowry for which PW 5, Muniza Khatoon (informant), had filed a complaint case against her husband. This was also admitted by the appellant in his statement under Section 313, Cr PC. Thus, the genesis of the alleged occurrence hasbeen proved by the prosecution. The time of the alleged occurrence is 5.6.1993 at 11 a.m. in the village lane. The I.O. found the place of occurrence in the village lane in the South of the house of Ramjan Mian. The Doctor, PW 1, conducted the post-mortem examination on the dead body on 6.6.1993 at 1.50 p.m. and found lacerated wound on the right side of head 2' x 1.5' x brain matter deep fracture of right parietal bone, which was the cause of death within 36 hrs. from the time of the post-mortem examination. This evidence also explains the time of the alleged occurrence on 5.6.93 at 11 a.m. Thus, the time of the alleged occurrence and the place of the alleged occurrence has well been proved by the prosecution.
7. The only eye-witness is the mother of the deceased, Saddam Hussain. At that time she was going with her son in the lane. No one of the villager was present there where her husband came, snatched the child, assaulted him with slippers and threw him on the ground causing fracture injury on the head resulting his death at the spot. The deceased is the child of the informant and the appellant is her husband. The institution of complaint case against her husband by the informant has been admitted. Due to non-withdrawal of that case, the appellant out of anger, assaulted his child, Saddam Hussain and threw him on the ground resulting his death. There is no evidence of false implication of this appellant by his wife. It is quite unbelievable that she would have spared the real assailant and instituted a case against her husband due to enmity.
8. In view of my above considered facts, I come to the conclusion that the learned Court below as per the evidence of the informant, which also gets support from the evidence of PW 4, PW 6, the medical evidence, PW 1 and the I.O., PW 7, has rightly convicted and sentenced the appellant, Sarfuddin Mian. Thus, I do not find any Infirmity in the impugned order of conviction and sentence passed by the learned Court below which is based on the sole testimony of the eye-witness, who is the mother of the deceased.
9. In the result this criminal appeal is dismissed as there is no merit in this case. The judgment and order of conviction and sentence passed by the learned Court below against the sole appellant, Sarfuddin Mian, is hereby affirmed.
Vishnudeo Narayan, J.
10. I agree.