Amir Ismail Sayyad @ Billa v. The State of Maharashtra

(ii) that there is no evidence against accused except that of PW-

8; PW-8 was 111/2 years old at the time of incident and her age cannot be ignored since being a child witness she was susceptible to being tutored and her deposition should therefore not be considered in the absence of corroborative evidence; since there is no material corroboration of PW-8’s evidence, accused is entitled to benefit of doubt;

(iii) Hence, he has prayed for setting aside of the impugned

5. Mr. Ajay Patil, learned APP appearing for Respondent in support of the prosecution’s case submitted that evidence given by PW-8, the eyewitness in this case is supported by the evidence given by PW-6, PW-7, PW-9 and corroborated by the medical evidence; evidence of PW-8 cannot be brushed aside on the ground of she being a child witness as she herself is an injured witness sustained a fracture during the incident; hence due to the injury sustained by PW-8 the weight of her evidence is naturally greater than any ordinary witness. Hence, he has prayed for dismissal of the Appeal.

6. We have heard the learned Advocates appearing for the Appellant/accused and the learned APP and with their able assistance perused the entire evidence on record.

7. It is seen that on 09.06.2015, PW-8 was taken to Sion Hospital by her uncle (PW-6) for checkup due to swelling on her right hand; out of fear PW-8 mentioned that she had a fall and her hand was injured; PW-5, Resident Medical Officer/doctor in Sion hospital examined Nagma and opined that there was a fracture in her hand; Nagma was admitted to Sion Hospital for two days; her hand was bandaged in plaster and she was discharged on 11.06.2015; PW-5 issued medical certificate for PW-8’s injuries which was marked in evidence as Exh.32.

8. PW-4 - Medical Officer, Sion hospital conducted autopsy on the dead body of Rizwan on 13.06.2015 at 10:15 a.m. and prepared PM Report which was marked in evidence as Exh.30.

8.1. He opined that there were three external injuries observed by him as under:-

(i) contusion of size 5 x 4 cm present over left zygomatic region of face-bluish black in color;

(ii) contusion of size 4 x 4 cm present over right side of chest in between midline and nipple-bluish black in colour; and

(iii) therapeutic injection mark for central line present over right infraclavicular region at middle one third.

8.2. He also certified the following internal injuries:-

(i) Under scalp hemorrhage of size 10 x 6 cm over frontal region, dark reddish in colour; sub dural hematoma present over right fronto temporo parietal region containing about 50 cc blood and blood clots and thin layer of subarachnoid hemorrhage present over whole cerebral cortex; and

(ii) Thorax: congested brain; contusion present over lower lobe of right lung at anti year aspect of 4 x 3 x 1 cm and opined the cause/probable cause of death “Shock due to head injury (unnatural).

9. PW-2 and PW-3 are pancha witnesses; PW-2 vide panchanama being Exh.18 identified the spot of incident, whereas PW- 3 witnessed recovery and seizure of one brown coloured 122 cm long leather belt having steel buckle and white colour remote control of Videocon d2h set top box/TV; seizure report was marked in evidence as Exh.23; thus incriminating articles used by accused were proved in evidence by prosecution.

10. PW-6 Hajra Abdul Kadir Shaikh is neighbour who met PW-8 at about 5:00 to 5:30 p.m. and was informed by her that accused assaulted Rizwan and PW-1 had taken him to hospital.

11. PW-8 - Nagma Nazim Shaikh is the injured child eye witness to the incident; she was 111/2 years old at the time of incident. In 2015, PW-8 resided with PW-1 (her mother) and her younger siblings Alina and Rizwan. In her deposition, PW-8 has stated that her father lived separately; that accused would visit their house frequently and also reside with them; that she and her siblings would address the accused as ‘Billa Uncle’, but he would force them to call him ‘daddy’; that accused would also regularly assault PW-1, PW-8, Alina and Rizwan. She has further deposed that on 08.06.2015, PW-1 gave milk and bournvita alongwith egg and bread to Rizwan and after eating he vomited. Accused was enraged and beat Rizwan, since he started crying loudly, he closed the door and windows and increased the TV volume and beat him with his belt; at that time she intervened to save Rizwan, but accused twisted her hand with force injuring her, thereafter PW-1 intervened to save Rizwan and PW-8, but accused assaulted PW-1 and thereafter accused assaulted Rizwan with the remote 5 to 6 times on his head and Rizwan became unconscious. Thereafter accused left and PW-1 took Rizwan to hospital. Accused later in the day returned home and threatened PW-1 and her that if they disclosed the incident to anyone he would kill Alina and her; that PW-8 was later taken to Sion Hospital by PW-9 (her uncle) for treatment where it was found that her hand was fractured. PW-8 identified accused and articles i.e. article No.1 (leather belt with steel buckle) and article No.2 (TV remote).

12. From the above deposition of PW-8, it is discernible that evidence given by PW-8 - Nagma corroborates and supports the deposition of PW-7 and PW-6. Deposition of PW-8 proves the presence of accused at the spot of incident on the date and time of incident. Evidence of PW-8 who is herself an injured witness is also corroborated by medical evidence given by PW-5, doctor who treated her. PM notes at Exh.30 clearly identify the injuries caused to Rizwan. Recovery evidence proved on record through PW-2 and PW-3 about the articles recovered and seized clearly support and corroborates PW- 8’s deposition. In this backdrop, though PW-1 - Fatma has turned hostile, the evidence led by prosecution alluded to herein above will have to be reappreciated in its proper perspective.

13. The settled legal position as enunciated by Apex Court pertaining to admissibility of testimony of child witness is well entrenched by the following citations:-

(i) In the case of Nivrutti Pandurang Kokate and Ors. Vs. State of Maharashtra[1], the Apex Court in paragraph Nos.[7] to 9 of the Judgment while dealing with and enumerating the law relating to admissibility of testimony of child witness has held as under:

(ii) In the case of Shamim Vs. State (GNCT of Delhi)2 in paragraph No.14 the Apex Court has held as under:-

14. In view of the above settled legal position, in the present case PW-8 has witnessed the assault on her brother Rizwan and has also been injured by accused; therefore it is highly improbable that PW-8’s understanding and recalling of the incident wherein she herself tried to intervene and prevent the assault on her brother’s life can be incorrect or disbelievable. To discard her testimony would be doing injustice to the child who has witnessed the entire incident unfolding before her own eyes. Minute perusal of her deposition and crossexamination shows that she is a fully reliable witness and there is no obstacle in the way of us accepting her evidence as admissible.

15. From the evidence of PW-9 it is further gathered that accused had after the incident paid visit to the hospital and met PW-1. PW-1 - Fatma in her evidence has stated that Appellant used to bear all household expenses of her and her three children. Hence, on reading of the entire evidnece on record it can be gathered that the unfortunate incident occurred on the sudden spur of the moment which was triggered by the vomiting by Rizwan, this was further escalated by his loud crying/screams and thereafter in a heat of passion accused used the belt and remote which was lying closeby to inflict blows on Rizwan’s head; vide Exh.22 Appellant has himself on 19.06.2015 voluntarily produced the leather belt and TV remote with which he assaulted Rizwan. Though PW-1 - Fatma has turned hostile, PW-8 - Nagma has witnessed the entire incident; there is no evidence of any person tutoring Nagma, however facts and circumstances in which the entire incident occurred certainly proves that it was not premeditated; that accused did not have any intention to commit the crime of murdering Rizwan nor had he planned the assault; hence the accused will have to be given the benefit of doubt.

16. In this context before we state our observations and findings on the above, it will be apposite to refer to the relevant provisions of IPC. Sections 299 and 300 IPC define the offences of culpable homicide and murder respectively and read thus: “299. Culpable homicide.—Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. Explanation 1.—A person who causes bodily injury to another who is labouring under a disorder, disease or bodily infirmity, and thereby accelerates the death of that other, shall be deemed to have caused his death. Explanation 2.—Where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skilful treatment the death might have been prevented. Explanation 3.—The causing of the death of a child in the mother's womb is not homicide. But it may amount to culpable homicide to cause the death of a living child, if any part of that child has been brought forth, though the child may not have breathed or been completely born.

300. Murder.— Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or— 2ndly.—If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or— 3rdly.—If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or— 4thly.—If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. Exception 1.—When culpable homicide is not murder.—Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. The above exception is subject to the following provisos:— First.—That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person. Secondly.—That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant. Thirdly.—That the provocation is not given by anything done in the lawful exercise of the right of private defence. Explanation.—Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact. Exception 2.—Culpable homicide is not murder if the offender in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence. Exception 3.—Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused. Exception 4.—Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner. Explanation.—It is immaterial in such cases which party offers the provocation or commits the first assault. Exception 5.—Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent."

17. Sections 302 and 304 IPC prescribe the punishment for the offence of murder and that of culpable homicide not amounting to murder respectively and read thus: “302. Punishment for murder.—Whoever commits murder shall be punished with death or 1[imprisonment for life], and shall also be liable to fine.” “304. Punishment for culpable homicide not amounting to murder.—Whoever commits culpable homicide not amounting to murder, shall be punished with 1[imprisonment for life], or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death; or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.” [emphasis supplied]”

18. The Trial Court has convicted and sentenced the Appellant for the offence of murder (as defined in Section 300 IPC) under Section 302 IPC. In view of the above discussion, in our considered opinion the conviction and sentence passed by the Trial Court calls for reconsideration due to the following reasons.

18.1. Exception 4 to Section 300 IPC outlines a situation where culpable homicide does not amount to murder. There are three requirements for this exception to apply:

(i) the act of killing is committed without premeditation;

(ii) the act of killing is committed in a sudden fight in the heat of passion upon a sudden quarrel; and

(iii) the offender should not have taken undue advantage or acted in a cruel or unusual manner.

18.2. In the present case, the aforesaid three requirements of Exception 4 to Section 300 IPC have been satisfied as under:

(i) From appreciation of evidence as a whole it is clearly discernible that there was no premeditation, preparation and/or intention harboured by accused to commit the act of killing Rizwan;

(ii) evidence given by the sole eyewitness i.e. PW-8 proves that the incident occurred because of the sudden vomiting and loud crying of Rizwan which provoked the accused and in a heat of passion/sudden spur of moment he assaulted Rizwan with the belt and remote which were lying nearby;

(iii) that the articles used for assault were picked up by

Appellant in a fit of rage which were lying next to him and in the strictest sense were not dangerous weapons and hence it cannot be reasonably said that he acted in an unusual manner.

19. On the basis of the above, we conclude that, though accused had knowledge that his act of assaulting Rizwan on his head with the TV remote and leather belt would be likely to cause his death but he had no intention to do so. Such an act does not travel beyond the offence of culpable homicide (as defined in Section 299 IPC) not amounting to murder. Punishment for culpable homicide not amounting to murder has been prescribed under Part II of Section 304 IPC. Facts and evidence alluded to hereinabove alongwith our observations come within the ambit of Part II of Section 304 IPC. As such, the Trial Court erred in convicting and sentencing the accused for the offence of murder under Section 302 IPC.

20. In view of the above discussion and findings, we are of the firm opinion that accused, in a heat of passion, acted in a manner that he knew is likely to cause death of Rizwan but without the intention to kill him. According to us, the act of Appellant falls within the purview of Exception 4 of Section 300 of IPC. Hence following order:-

(i) Appellant is convicted under Section 304 (Part II) of

IPC and sentenced to suffer rigorous imprisonment for 10 years and to pay a fine of Rs. 25,000/-, in default of payment of fine to suffer further rigorous imprisonment for one year;

(ii) Appellant is entitled for set off of the period already undergone in jail;

(iii) Appellant shall be released on the completion of the sentence unless required in any other case / cases;

(iv) Appeal is partly allowed in the aforesaid terms.