MD AKALU Vs. STATE OF BIHAR

JUDGEMENT

(1.) This appeal is against the judgment of conviction and order of sentence dated 29.8.2005/ 30.8.2005 by Additional Sessions Judge-cum- Fast Track Court No. 3, Kishanganj as passed in Sessions Trial No. 301/2000/ Tr. No. 23 of 2003 whereby the appellant has been convicted under Section 304 of the Indian Penal Code and sentenced to R.I. for ten years and a fine of Rs. 5000/-and in default of payment of fine to undergo simple imprisonment for three months. The appellant Md. Akalu is full brother of the informant Amiruddin who along with his injured wife Praveen and Sala Amirul Haque carrying dead boy of his deceased daughter Ashera aged about 8 months came to Bahadurganj P.S. on 21.6.1998 at 4:00 P.M. and gave his statement that in the preceding night at 10:00 P.M. while it was raining heavily, he (informant) went to get door of his room in his house opened in order to tie his cow which was tied in the Aagan and that at that time Akalu (appellant), Jala), Saberun Nissa and Saimoon Nissa who lived in the same Aagan, abused him and protested to the opening of the door of the room. Seeing the melee his (informant's) wife tried to flee away from there and the appellant Akalu tried to catch hold of her and he also assaulted with a Fatti on her head as a result of which, she fell down with her girl child Ashera. Then Akalu pressed neck of the girl child and he fled away. Thereafter, the girl child was hardly breathing there. The informant went to Dr. Kaisher and Dr. Nuroo to call them for attending the girl child but they refused to come. He (informant) returned to his house and found that the child was dead.

(2.) As many as 8 witnesses were examined by prosecution. The accused/appellant also examined defence witnesses. Out of the prosecution witnesses, P.W.1 Sahnaz Begum, the sister of the informant, P.W. 2 Nazmera Begum, P.W.3 Noordana Begum and P.W.4 Yasmin who were the neighbours turned hostile and they did not support the prosecution case saying that they knew nothing about the occurrence. It is worth noticing that while P.W. 1, a hostile witness was being cross-examined on behalf of the prosecution, the A.P.P. drew her attention towards her previous police statement that on being called by Akalu (Appellant) she had gone to the house of informant Amiruddin and had found that he (informant) was breaking door in the house and that in course of breaking, a scuffle took place between the informant and the appellant and that due to the scuffle, the informant became incensed and he started assaulting his wife and then after cry of the informant's daughter (deceased) was heard and hearing this, the mother of the informant (grand-mother of the child) went there and finding the child fallen on ground brought her in the house and thereafter, it was heard that the inmates were weeping saying that the child died.

(3.) The P.W. 6 Neekhat Praveen, the informant's wife and P.W. 7 Md. Amiruddin, the informant are the only two witnesses who were the parents of the deceased child, have supported the case of prosecution.