MD. QAIYUM Vs. STATE OF BIHAR

JUDGEMENT

(1.) The sole appellant has preferred this appeal from the judgment of conviction and order of sentence dated 13.08.1992 and 14.08.1992 respectively passed in Sessions Trial No 246 of 1990 by the Additional Sessions Judge II, Bhagalpur convicting the sole appellant for an offence punishable under Section 302 of Indian Penal Code (IPC) and sentencing him to rigorous imprisonment for life for murdering Shine, three years old daughter of informant Zainul Abidi (PW 1) and Section 201 of I.P.C. for which he was sentenced to five years rigorous imprisonment. Sentences to run concurrently. It may be noted that the appellant has already remained in custody for about six years.

(2.) The prosecution case starts with the Fardbayan of PW 1 Zainul Abidi given at about 8.45 am on 19.11.1988 to the Officer-in-charge of Naugachia Police Station Shri Arun Kumar Singh who has not been examined. It, inter alia, alleges that on the previous day that is 18.11.1988 at about 5 pm, there was some quarrel amongst ladies in the neighbourhood. The wife of informant PW 1 Begum Tara Khatoon (PW 7) took the infant and went there. The appellant, who is the son-in-law of the brother-in-law of the informant, came there and took the infant in his lap. He returned to informant's house with the infant and in way, he met the informant's mother Sadiqa Khatoon (PW 8) who asked for the custody of the infant but appellant is said to have refused. From home of the informant where the appellant went with the child is not known. When the mother of the infant returned home and did not find the appellant or the child, she started making enquiries. Neighbours collected. The appellant also came there. The neighbours questioned the appellant. On receiving this message, the informant (PW 1), who had gone to Naugachia Town to sell eggs, returned. Everyone questioned the appellant. He maintained silence. At about 9 pm, the appellant is said to have disclosed that if Rs. 3,000/- is given, he would release the child. When the villagers agreed to pay the amount, the appellant is alleged to have said that the child would be released in the morning. The villagers kept him in custody. In the morning at about 5 am, he led the villagers to some distance and then allegedly disclosed that he had killed the infant and thrown her in the river. The villagers then searched and they allegedly found the body floating in the river. They took out the body of the infant from the river and took it to the house of the informant. People were sent to inform the police and, accordingly, the Officer-in-charge came and recorded the statement. In the meantime, the appellant was beaten up by the villagers. The appellant was already in custody of the villagers. He was handed over to the police. The case was investigated. The body of the infant was sent for post mortem which was performed at about 2 p.m. on 19.11.1988 itself by Dr D N Mehta (PW 11). Charge-sheet having been submitted and cognizance having been taken, the case was committed to the Court of Session where charges under Sections 302 and 201 of I.P.C. were framed to which the appellants pleaded not guilty and tried and convicted. Hence, the appeal.

(3.) Learned Amicus Curiae, arguing for the appellant, submits that the prosecution story is wholly incongruous and cannot be accepted. He submits that if appellant had kidnapped and then murdered the child why would he had appeared before the villagers immediately without even being called. He would then submit that having been in custody of the villages, how can even it be imagined that he would demand Rs. 3,000/- for the return of the child. He would further submit that if what is alleged that the appellant confessed to the villagers in the morning that he had killed and thrown the child in the river then why, in the first place, he would have said that if Rs. 3,000/- would be paid, he would return the child. Lastly, he would submit that if we look to the post mortem report, it belies the prosecution case.