[1]
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
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CRIMINAL APPEAL No. 187 of 1987
SMT. SHANKERI
V/S
STATE OF RAJASTHAN
Date of Judgment : March 29, 2010
HON'BLE SHRI AM KAPADIA,J.
HON'BLE SHRI GOPAL KRISHAN VYAS,J.
Mr. Sanjay Mathur for accused appellant.
Mr. A.R. Nikub, Public Prosecutor.
JUDGMENT
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BY THE COURT (PER HON'BLE Mr. A.M.KAPADIA, J.):
1. Challenge in this appeal filed under Sec.374 of the Code
of Criminal Procedure (‘the Code’, for short) is to the
correctness of the judgment and order dated 15.05.1987
rendered in Sessions Case No.31 of 1986 by the learned
Sessions Judge, Banswara, by which the sole appellant
Smt. Shankeri (‘accused’, for short) has been convicted
for commission of the offence punishable under Sec.302
and 307 of the Indian Penal Code (‘IPC’, for short) and
sentenced to imprisonment for life with fine of Rs.50, in
default of payment of fine to undergo further undergo
rigorous imprisonment for 7 days for the offence under
[2]
Sec. 302 IPC, and rigorous imprisonment for two years
and fine of Rs.50, in default of payment of fine to undergo
further imprisonment for 7 days for the offence under
Sec. 307 IPC. It is also ordered that both the sentences
shall run concurrently.
2.The prosecution case, as disclosed from the FIR and
unfolded during trial is as under:
2.1 On 05.03.1986 at 3:20 PM, Bhuriya s/o Onkar
lodged First Information Report at Police Station
Banswara, wherein inter-alia it was stated that on that
day he accompanied by Narji and Lalu was proceeding
towards their village after making certain purchases
from Banswara and in the afternoon at about 2 PM
when they reached near Bheempura canal bridge, they
saw an Adivasi lady sitting with a child in her lap
covered by a cloth. Two children named Nanu and
Lassi were also sitting. Some other persons named
Hurmal, Kanti s/o Thavra, Kanti s/o Bheriya were also
sitting. Kanti s/o Bheriya disclosed that sometime
back while they were taking bath, they saw a child
floating in the canal to whom he took out. The child
was dead and he put the child under a tree. He saw
that near the bridge, two men, one lady and two
children were standing. He took the deadbody towards
[3]
them and the girl standing there named Lassi
identified the dead body to be of her younger brother
Prabhu. On inquiring , the lady disclosed her name
as Shankeri and stated that she was ill-treated by her
father-in-law Dhulji and husband Gautam, who turned
her alongwith her children out of house after beating.
She further stated that they were hungry and as she
was fade up with life, she decided to commit suicide
and had pushed the children in the canal.
2.2 On the basis of aforesaid report, a case under
Sec.304 IPC bearing FIR No.112/1986 was registered
at Police Station Sadar, Banswara and investigation
started. During the course of investigation, inquest on
the dead body of deceased Prabhu Ram was held and
thereafter it was sent for autopsy. Panchnama of the
scene of occurrence was prepared and the statements
of witnesses were recorded.
2.3 On completion of investigation, as sufficient
incriminating evidence was found against accused
Shankeri, she was chargesheeted for the offence under
Sec.304 and 307 IPC in the Court of Chief Judicial
Magistrate, Banswara.
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2.4 As the offence punishable under Sec.304 & 307 IPC
is exclusively triable by the Court of Sessions, the
learned Judicial Magistrate committed the case to the
Sessions Court, Banswara.
2.5 The learned Sessions Judge , Banswara (trial Court,
for short), who conducted the trial, framed charge
against the accused for commission of offence
punishable under Sec.302 & 307 IPC. The charge was
read over and explained to the accused, who pleaded
innocence and claimed to be tried therefore she was
put to trial.
2.6 To prove the culpability of the accused, the
prosecution examined as many as 8 witnesses and
relied on their oral testimony. The prosecution also
produced in all 9 documents which were exhibited to
prove the charge levelled against the accused and were
relied upon.
2.7 The trial Court, thereafter, recorded statement of
accused under Sec.313 of the Code, wherein she
denied the case of prosecution and stated that a false
case involving her has been made out by the police
and further stated that she is innocent . In her further
[5]
statement she stated that while she was serving
drinking water from canal to her three children, they
fell down in the canal.
2.8 On appreciation, analysis and scrutiny of the
evidence on record, trial Court came to the conclusion
that accused had thrown her three children into canal
on the basis of extra-judicial confession of accused
before PW2 Hurmal & PW3 Hurta, and out of the three
children thrown in the canal, two survived and one
died, therefore, the prosecution has successfully
established that the accused has committed offence of
murder of her child Prabhu and attempted to commit
murder her two other children and on the basis of that
finding the trial Court has found the accused guilty for
the offence under Sec.302 IPC & 307 IPC and
accordingly convicted and sentenced her, to which the
reference has been made in earlier paragraph of this
judgment.
3.Mr. Sanjay Mathur, learned counsel for the accused
appellant submitted that there is absolutely no evidence
on record to show that who took out the body of Prabhu
from canal and in what circumstances. It is also
emphatically submitted by the learned counsel that the
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sole eye witness is PW8 Lassi, the daughter of the
accused, who is projected as eye witness but she has not
supported the prosecution case. She has not been
declared hostile nor has been cross examined, therefore,
if her evidence is taken on its face value, then no case is
made out against the accused. It is also pointed out by
the learned counsel that PW1 Kanti & PW2 Hurmal are
projected as witnesses of alleged extra-judicial confession
made by the accused but infact there is no evidence to
that effect. They have not stated anything before the
Court that the accused made confession before them,
however, the trial Court has misread their evidence and
convicted the accused.
On the aforesaid premise, according to
the learned counsel, there is no evidence worth name to
connect the accused with the crime, therefore, the
prosecution has miserably failed to prove the charge
levelled against the accused. He, therefore, submitted
that the conviction and sentence recorded against the
accused appellant deserves to be quashed and set aside
by allowing this appeal and thereby acquitting the
accused of the offence with which she was charged.
4.Per contra, Mr. A.R. Nikub, learned Public Prosecutor
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supported the judgment and order of conviction and
sentence recorded against the accused. According to
him, on the basis of extra-judicial confession made by the
accused before PW1 Kanti & PW2 Hurmal, the
prosecution has successfully established the guilt of the
accused, therefore, no interference is called for in the
impugned judgment and order of conviction and
sentence. He, therefore, urged to dismiss the appeal.
5.We have considered the submissions advanced by learned
counsel for the parties and we have perused the
impugned judgment and order and the proceedings
recorded by the trial Court. We have also undergone
through vital features of the case and the evidence on
record, which is read by the learned counsel for the
parities.
6.At the outset, it may be stated that the prosecution case
against the accused is based on direct evidence of PW8
Lassi, the minor daughter of accused of the age of 6-7
years, who is projected as an eye witness and the
evidence of PW1 Kanti & PW2 Hurmal, who have been
projected as the witnesses to the extra-judicial confession
made by the accused before them.
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7. It is also pertinent to mention here that the incident has
been reported by PW5 Bhuriya s/o Onkar, as such his
evidence is also to be taken note of. PW5 Bhuriya in his
examination in chief has inter-alia testified before the
Court that it is about 6 months back when he, Lalu and
Narji were going to their house from Banswara and
reached near the canal where new prison is being
constructed. It was about 2-3 O’ Clock at that time. He
also testified that the accused present in court was
sitting with a dead child in her lap and many people
gathered there, who asked him to give information to the
police so he informed the police. On reappraisal of the
evidence of this witness it only reveals that he is simply
an informant and has given report to the effect that one
lady was sitting near the canal with dead child in her lap.
8.Now the important witness is PW8 Lassi, who has been
projected as an eye witness. She is daughter of the
accused aged 6-7 years. She has inter-alia stated that
the name of her mother is Shankeri. Nanu is her brother
and Prabhu who died was also her brother. On pointed
question asked by the Court as to whether she was
thrown in the canal water, she has replied that while
drinking water she fell down and further stated that her
mother had not thrown. Her deceased brother also while
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drinking water from canal fell down. It may be
appreciated that she has neither been declared hostile nor
she has been cross examined by the prosecution. She is
the eye witness, therefore, there is no reason to discard
her oral testimony and if we accept her oral testimony,
then according to us, no case is made out against the
accused for the offence under Sec.307 & 307 IPC.
9. The prosecution in this case has relied upon oral
testimony of PW1 Kanti, who according to the
prosecution was the witness of extra-judicial confession
made by the accused before him. He has inter-alia stated
about 6-7 months he was doing labour work on
Madareshwar road. It was the time for taking lunch and
at about 1 O’Clock he and Hurma had gone together to
take bath in the canal near puliya a bit ahead of kagadi
and after taking bath when they were coming out of
canal, they saw two children drowning in the water who
were screaming. He and Hurma both jumped into the
water and put them out. The child to whom he saved was
about 3-4 years old and the child to whom Hurma took
out was about 5-6 years old. He further testified that a
woman was coming alongside the canal but she didn’t
say anything. Kanti S/o Bheriya came there with one
child, who was dead, and on seeing him the two children,
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who were saved, stated that he was their brother Prabhu.
He also testified that he did not know the name of the
accused and stated that Bhuriya informed the police.
According to him, when the children were asked as to
how they fell in the canal they replied that their mother
had thrown them in the canal and on asking the accused
she stated that she would have drowned in the canal
alongwith the children because her husband after taking
liquor beats her and her father-in-law and mother-in-law
also torture her, so she wanted to die. In his cross
examination, he stated nobody else was there where they
were bathing and when Prabhu was brought out 10-12
persons collected there. According to him the dead body
of Prabhu was brought by Kanti S/o Bheriya.
10. The prosecution also examined and relied upon oral
testimony of PW2 Hurmal, who has testified that about 6
months back when he was working at Madareshwar road,
he and Kanti S/o Thavra both had gone to kagdi canal for
bathing. When they came out after bathing, they saw two
children flowing who were shouting, and out of them the
one who was flowing ahead was a girl. On that, he and
Kanti S/o Thavra both jumped in the canal and after
catching hold of both the children put them out. Of those
two children, one was a boy and another a girl. The age
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of the boy was about 5-6 years. He did not know
whether the girl was older or younger. He testified that
both the children told that their mother had thrown them
into canal. After some time, the mother of those children
reached there walking alongside the canal and on seeing
their mother, the children clinged to them and stated
that they would not go with their mother and would
remain with them. At the first, the mother of children
said that they were not her children but after sometime
when nearby persons came on the spot and on giving
threatening said that her husband tortures her so she
left her house and said that her children had themselves
fallen in the canal. After some time Kanti S/o Bheriya
came there with a dead child of about 1 month and the
boy who was rescued by them on seeing the dead child
stated that this was his brother Prabhu. Thereafter, the
mother of children said that on account of tortures of her
husband she threw the children in the canal. He further
testified that the mother of children didn’t cry seeing the
dead child. He also testified that the mother of children
told her husband’s name as Gautam and the name of
village as Chhatripada but didn’t tell her name. In cross
examination, the witness testified that at the place where
the children were rescued, 6-7 man had reached. He
stated that he could not identify the accused in the Court.
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He stated that someone else had asked that lady about
the incident but his name is not known to him. The
witness further testified that thereafter Kanti had asked
the lady about incident and she replied that her husband
tortured her so she would leave taking the children with
her. He denied the suggestion that other people were
also bathing there besides him and Kanti.
11. On re-appraisal of the evidence of aforesaid witnesses it
is seen that the witnesses came to know from children
that their mother had thrown them to canal. It is further
revealed from their evidence that out of three children
one child died and two survived but which child stated
before them that her mother had thrown them to the
canal is not clear. In the entire breadth and length of the
evidence, there is no voluntary extra-judicial confession
made by the accused. If we examine the oral testimony
of PW8 Lassi, she has not supported the prosecution case
and when direct evidence is available then there is no
reason to discard the oral testimony of eye witness.
Besides this, the evidence of PW1 Kanti & PW2 Hurmal is
hearsay evidence. It is also not clear from their
evidence which child informed them about this incident
and when informant PW8 Lassi, the eye witness to the
incident, herself has not supported the prosecution case,
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then on the basis of hearsay evidence of PW1 Kanti &
PW2 Hurmal prosecution is unable to establish the case
against accused appellant Shankeri beyond reasonable
doubt, therefore, accused deserves the benefit of doubt.
12.It is settled principle of law that when the direct
evidence of eye witness does not support the prosecution
case, in that case the evidence of PW1 & PW2 who have
deposed before the Court on the basis of information
supplied by eye witness their evidence cannot be relied
upon to base the conviction.
13. On overall view of the matter, according to us,
prosecution has miserably failed to establish beyond
reasonable doubt the case against the accused therefore,
accused deserves to be acquitted by giving her benefit of
doubt and the impugned judgment and order of
conviction recorded against the accused deserves to be
quashed and set aside by allowing this appeal and
thereby acquitting the accused of the offence with which
she was charged.
14.For the foregoing reasons, the appeal succeeds and
accordingly it is allowed. The impugned judgment of
conviction and order of sentence recorded against
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accused appellant for the offence under Sec.302 and 307
IPC is hereby quashed and set aside and accused
Shankeri is acquitted of the offence under Sec.302 & 307
IPC.
15. Accused appellant is on bail. Her bail bonds stand
cancelled and the sureties discharged.
( GOPAL KRISHAN VYAS ),J. ( AM KAPADIA ),J.
jpa/