Decided on November 11,1976

THE STATE Respondents

Referred Judgements :-



P.K. Chanda, J. - (1.)The appellant has been convicted and sentenced to simple imprisonment for five years for an offence-under Sec. 304 Part II of the Indian Penal Code by the learned Sessions Judge, Birbhum. While admitting the appeal a Division Bench of the Court issued a Rule calling upon the accused-appellant to show cause why she should not be convicted under Sec. 302 I.P.C. and why the sentence should not be enhanced. The Rule and the appeal are heard together.
(2.)Certain facts are tolerably clear from the evidence on record. In April. 1973 the appellant Ayesha Bibi was living at Dholtikuri within Police Station Suri with her husband P.W. 12, Hamid Sha and her mother-in-law. P.W. 2 Dilu Sha is also a resident of that village and his house is at a distance of about 100 cubits from that of Hamid Sha. It has transpired in evidence that on 27.4.73 Dilu Sha went to the village Khatipur which would be about 6 or 7 miles from Dholtikuri. On that day in the morning at about 7 a.m. after her husband left for Khatipur. P.W.I, Faizunnessa went to her father's house in the same village with her daughter Dilbahar who was aged about 21/2 years. It further appears that at about 8.30 or 9 a.m. on that day when P.W. 1 was returning to her husband's house with Dilbahar the appellant took Dilbahar from P.W. 1 assuring that the girl would be returned after some time. P.W. 1's evidence regarding the attitude of the accused towards the girl is that "she used to love my daughter very much and we had no dispute with her." Her husband (P.W.2) has said "Accused used to love my daughter Dilbahar very much. Often she used to look after her." No motive for killing the child by the appellant has been suggested by the prosecution. It appears that the husband and the mother-in-law of the appellant were away from the house when the appellant took the child from P.W. 1. Subsequently on search the dead body of the child was found on a bamboo platform over the staircase in the first floor of the appellant's husband's house covered with an earthen pot used for frying rice. The report of the postmortem examination reveals that the death was due to asphyxia as a result of throttling which was ante mortem and homicidal in nature (vide the evidence of P.W. 8, Dr. Panja) After the recovery of the dead body the appellant made a confession in presence of P.Ws. 1, 3, 4, 5,6,7,9, 10 and 11 to the effect that under the influence of evil spirit she had killed the child. There was no motive behind the crime. Motive is something which prompts a man to form an intention and the knowledge is awareness of the consequence of the act. In many cases intention and knowledge merge into each other and mean the same thing more or less and intention can be presumed from knowledge. The demarcating line between knowledge and intention is no doubt thin but it is not difficult to perceive that they connote different things. In this connection reference may be made to Basdev's case, reported in AIR 1956 SC 488. The appellant was aged only 13 or 14 at the time of the incident. The absence of motive is a circumstance which is relevant for determining whether the appellant had intention to kill the child. What a man intends can also be judged from what he says. In the instant case though from what this young girl disclosed at the earliest opportunity it cannot be predicted that she was of unsound mind, still it may very well be said that some kind of hallucination or frenzy might have been working in her mind. If she had any intention to kill the child, it is absurd to think that the appellant would take her from the lap of her mother with the assurance that the girl would be returned some time thereafter. The sheer brutality of the assault in the absence of any motive and in the face of the prosecution evidence that the girl was very much loved and at times looked after by the appellant are circumstances which would lead to the inference that the mind of the accused was unhinged and far from normal when the offence was committed. In other words, it appears that her mind was so obscure for reasons not intelligible that there was incapacity in her to form the required intention.
(3.)In the facts and circumstances of the case and having regard to the age of the appellant, we hold in agreement with the learned Judge that the appellant had the requisite knowledge to bring the case under Part II of Sec. 304 of the Indian Penal Code and she had not the requisite intention as contemplated by Sec. 302 or 304 Part I of the Indian Penal Code.

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