SHAMSHUDDIN Vs. STATE OF U P

JUDGEMENT

(1.) THIS appeal has been filed by Shamshuddin, who has been convicted by the learned Sessions Judge, Meerut under Section 318 IPG and has been sentenced to undergo Rl for two years. He has also been ordered to pay a fine of Rs. 1,000/- and in default further RI for six months.

(2.) THE facts as alleged by the prosecution, briefly, are that one Abdul Karim was sentenced to imprisonment for life in a dacoity case. THE appellant developed iilicit intimacy with his wife Smt. Nasim Bano. When Abdul Karim was released he resented this illicit intimacy. THE appellant and Smt. Nasim Bano committed his murder, by giving him poison Both of them were sentenced to imprisonment for life. This appellant was, however, acquitted on appeal by the High Court. Smt. Nasim Bano while going to Jail entrusted her minor daughter Km. Kausarto the care of the appellant. At that time Kumari Kausar was aged 12 to 13 years Some time after, the appellant developed illicit intimacy with Km. Kausar also, with the result that she became pregnant. On 8-2-1972 the appellant called one Mst. Naziran mid-wife to his house on the false pretext that Km. Kausar had some sprain. When Mst. Naziran arrived, she noticed that a child had born to Km. Kausar and she also saw that the appellant was running away with the child. Being terrified, Mst. Naziran raised an alarm, which attracted the attention of certain persons and they also saw the appellant running away. A search was made for the child but it could not be traced. Abdul Rahim, uncle of Km. Kausar, received information of this occurrence through one Iqbal Ahmad and he, therefore, lodged a report THE case was registered under Sections 302 and 201 of the Indian Penal Code after the receipt of the medical report of Km. Kausar. THE investigation was done by S. I. Sri Kishan Diwakar, who recorded statements of the witnesses, prepared site-plan and submitted charge sheet.

(3.) IT is not denied that Smt. Nasim Bano's husband was sentenced to imprisonment for life in a dacoity case and it is also not denied that the appellant and Smt. Nasim Bano were both convicted for the murder of Abdul Karim by the Sessions Judge but on appeal this appellant was acquitted. The prosecution case is that when Smt. Nasim Bano was going to jail Km. Kausar was given in the appellant's custody and the appellant developed illicit intimacy with her. When Km. Kausar became pregnant this appellant in order to conceal his illicit connection disposed of the body of the child. The most material statements are those of Km. Kausar and the mid-wife Mst. Naziran. The learned counsel for the appellant argued that the trial court had acquitted the appellant under Section 302 IPC because in the FIR it was not mentioned that this appellant had caused the death of the child. IT was pointed out that in the FIR it was also not mentioned that the appellant had disposed of the child's body and therefore for the same reason the appellant should have been acquitted of the charge under Section 318 IPC. After going through the record I think that this argument is not tenable. On the point of strangulation of the child, there was the statement of Km. Kausar alone and therefore the trial court did not think it proper and safe to base conviction on her uncorroborated testimony. But so far as the other part of the story is concerned, there is sufficient material on record. IT would, therefore, not be correct to say that merely because in the FIR it is not mentioned that the appellant disposed of the body, the charge under Section 318 IPC should also fail. I have gone through the statement of Mst. Naziran and she clearly deposed that she was called by the appellant on a false pretext. IT was contended that if the appellant really intended to conceal the birth of the child, he would never have called Mst. Naziran for he would have first taken her in confidence and then called her. This line of argument is also not correct. If the girl was going to be delivered of a child, some midwife or nurse had to be called for the purpose. The fact that the appellant attempted to call Mst. Naziran on a false pretext in fact goes against him, The appellant after taking the help of Mst. Naziran could have either taken her into confidence or he could have won over her by threatening her or by bribing her. But it so happened that by the time Mst. Naziran reached the spot the child had already been born. When Mst. Naziran saw the appellant running away with the child, she naturally became terrified and raised an alarm. The other witnesses came to the spot on hearing her alarm, and they were informed that this appellant had run away with the child. I have not been able to find out any thing on record to affect the credit of these witnesses. 1