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. 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.
(3.) 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.;