ASHIQUE KHAN Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS appeal has been filed from jail by Ashique Khan, who has been convicted under Section 302 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life. We have heard Sri Deba Prasad Mukherjee as amicus curiae and Sri Sushil Kumar Jha appearing for the State of Bihar. The charge against the appellant was that on or about 4th October, 1967, he had been guilty of murder of his daughter, named Sanichari, aged about two months.

(2.) THE prosecution case appearing from the evidence of Phagu Ahir (P. W. 1) was to the effect, that, on the day mentioned above, he had seen the appellant quarrelling with his wife and at that time the appellant had a baby in his hands and at the time of the quarrel the appellant had thrown his baby on the ground, with the result that she died. THE first information report in the case is Exhibit 1 and it is in the form of a letter written to the Officer-in-charge, Baghmara Police Station, on the 4th October, by Sri Mohan Lal Agarwal, Safety Officer, Ashokothi Phularitand Colliery (P. W. 7 in the case). According to the investigating Officer Bansidhar Sahay (P. W. 9) on the 4th October at 5.30 p m. he had received a message on the telephone and at 6 p.m. he had left the police station for the place of occurrence, where P. W. 7 had given him the written report mentioned above. On this report, the case was instituted. THE appellant's case appearing from his examination before the learned Sessions Judge appears to be that he had been wrongly implicated, although he was not guilty. Apart from P. W. 7. four witnesses were examined on behalf of the prosecution for proving the complicity of the appellant in the alleged crime. THEse witnesses are Phagu Ahir (P. W. 1), Dayanand Singh (P. W. 4), Ramrup Yadav (P. W. 5) and Badri Keot (P. W. 8). P. W. 5 was declared hostile by the prosecution and he was allowed to be cross-examined. I shall now refer to the evidence of these four witnesses before dealing with the first information report and the evidence of P. W. 7. A gist of the evidence of P. W. 1 has already been given above. He stated that the appellant, during the quarrel with his wife had called out his wife and had said "Dekh, Dekh", and while uttering these words he threw the babv on the ground. Without anything more, the evidence is not very conclusive that the appellant had deliberately thrown his baby on the ground. Although he has referred to this matter also in his cross-examination. it appears from his cross-examination that he was engaged in carrying pieces of iron and he had seen the appellant and his wife quarrelling from a distance of about 10 to 15 feet from him. THErefore it is difficult to say that from that distance this witness could have noticed all the details, including the fact that the appellant had deliberately dashed his daughter, aged about two months, on the ground. In our opinion, it is not at all safe to rely on the evidence of this witness for a conclusion that the appellant had deliberately thrown his baby on the ground, with the intention of killing her. We would indicate presently that the baby may have slipped away from the appellant's hand during the quarrel. According to P. W. 4, the appellant's wife told him that she wanted to go to her father's place and the appellant had objected to it. This had led to an altercation. As the wife was moving away, the appellant had asked her to stop and had uttered "Dekho" and threw down the baby on the ground. THE evidence of this witness may be tested by reference to what P. W. 7 had deposed. According to P. W. 4. he had narrated everything to P. W. 7, who had arrived 10 to 15 minutes after the occurrence. This evidence is not at all corroborated by P. W. 7. All that the latter has said is that when he had reached the place of occurrence he had seen a crowd collected there and he had learnt that a baby had been killed. THErefore, if P. W. 4 is right that he had seen everything in detail and had narrated everything to P. W. 7. the evidence of the latter would not be as vague as it is. THE evidence of P. W. 4 is also, therefore, not wholly acceptable for establishing the offence charged against the appellant. P. W. 5, although declared hostile by the prosecution, has given a version, which, if accepted clearly proves that the baby must have slipped out of the appellant's hands during the quarrel. This witness has stated that, as the appellant ran towards his wife asking her to return, the appellant had dropped the babv on the ground and had cried out "Lo Bachcha to gir gaya". This evidence clearly indicates that accidentally the baby had slipped out of the appellant's hands. THEre does not appear to be any reason why this evidence should foe rejected, only because the witness was allowed to be cross-examined bv the prosecution. That the witness was not wholly in favour of the appellant is clear from his evidence where he states that the appellant had even assaulted his wife in the process of quarrelling. It will not be proper to reject the evidence of P. W. 5 only because his statement is favourable to the accused about the occurrence. P, W. 8 has deposed that the appellant had thrown his child on the ground. But, even according to this witness, the quarrel was going on between the appellant and his wife and the witness was about 15 to 20 feet away from where the altercation was going on. What this witness had stated in cross-examination about the appellant's lifting his child above his head and throwing her on the ground so that the child's buttock touched the ground first, is not at all supported by the injuries found on the baby. All the injuries that were found on the child were on the head. THErefore, it is not at all safe to rely on the evidence of P. W. 8. Reverting to the first information report and the evidence of P. W. 7, it is clear, that, if the prosecution case is true, the complicity of the appellant would have been mentioned specifically in the first information report. All that the first information states, in this context, is, that, the appellant was playing with his child and. thereafter, he had a quarrel with his wife and then the appellant had dropped the child from Ms hands on the ground resulting in her death. If the prosecution witnesses had seen the appellant deliberately throwing the child with force on the ground they would have mentioned this matter to P. W. 7 In detail and the matter would have found place in the first information report. THErefore, in our opinion, this is a fit case in which the conclusion must be that the prosecution has failed to prove the charge and that benefit of doubt must accrue to the appellant. THErefore, the conviction and sentence passed on the appellant must be set aside. THE appeal is allowed.