{"id":83039,"date":"2010-03-29T00:00:00","date_gmt":"2010-03-28T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/smt-shankeri-vs-state-on-29-march-2010"},"modified":"2015-09-21T13:50:05","modified_gmt":"2015-09-21T08:20:05","slug":"smt-shankeri-vs-state-on-29-march-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/smt-shankeri-vs-state-on-29-march-2010","title":{"rendered":"Smt. Shankeri vs State on 29 March, 2010"},"content":{"rendered":"
Rajasthan High Court – Jodhpur<\/div>\n
Smt. Shankeri vs State on 29 March, 2010<\/div>\n
                             [1]\n\n IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT\n                           JODHPUR\n     --------------------------------------------------------\n\n            CRIMINAL APPEAL No. 187 of 1987\n\n                     SMT. SHANKERI\n                          V\/S\n                          STATE OF RAJASTHAN\n\n\n\nDate of Judgment :                  March 29, 2010\n\n\n                 HON'BLE SHRI AM KAPADIA,J.\n            HON'BLE SHRI GOPAL KRISHAN VYAS,J.\n\n\nMr. Sanjay Mathur for accused appellant.\nMr. A.R. Nikub, Public Prosecutor.\n\n                                   JUDGMENT\n\n                                     -----\n\nBY THE COURT (PER HON'BLE Mr. A.M.KAPADIA, J.):<\/pre>\n
1. Challenge in this appeal filed under Sec.374 of the Code<\/p>\n
  of Criminal Procedure (‘the Code’, for short) is to the<\/p>\n
  correctness of the judgment and order dated 15.05.1987<\/p>\n
  rendered in Sessions Case No.31 of 1986 by the learned<\/p>\n
  Sessions Judge, Banswara, by which the sole appellant<\/p>\n
  Smt. Shankeri (‘accused’, for short) has been convicted<\/p>\n
  for commission of the offence punishable under Sec.302<\/p>\n
  and 307 of the Indian Penal Code (‘IPC’, for short) and<\/p>\n
  sentenced to imprisonment for life with fine of Rs.50, in<\/p>\n
  default of payment of fine to undergo further undergo<\/p>\n
  rigorous imprisonment for 7 days for the offence under
\n                                [2]<\/p>\n
 Sec. 302 IPC, and rigorous imprisonment for two years<\/p>\n
 and fine of Rs.50, in default of payment of fine to undergo<\/p>\n
 further imprisonment for 7 days for the offence under<\/p>\n
 Sec. 307 IPC. It is also ordered that both the sentences<\/p>\n
 shall run concurrently.\n<\/p>\n<\/p>\n
2.The prosecution case, as disclosed from the FIR and<\/p>\n
 unfolded during trial is as under:\n<\/p>\n
  2.1    On 05.03.1986 at 3:20 PM, Bhuriya s\/o Onkar<\/p>\n
    lodged First Information Report at Police Station<\/p>\n
    Banswara, wherein inter-alia it was stated that on that<\/p>\n
    day he accompanied by Narji and Lalu was proceeding<\/p>\n
    towards their village after making certain purchases<\/p>\n
    from Banswara and in the afternoon at about 2 PM<\/p>\n
    when they reached near Bheempura canal bridge, they<\/p>\n
    saw an Adivasi lady sitting with a child in her lap<\/p>\n
    covered by a cloth.    Two children named Nanu and<\/p>\n
    Lassi were also sitting.         Some other persons named<\/p>\n
    Hurmal, Kanti s\/o Thavra, Kanti s\/o Bheriya were also<\/p>\n
    sitting.   Kanti s\/o Bheriya disclosed that sometime<\/p>\n
    back while they were taking bath, they saw a child<\/p>\n
    floating in the canal to whom he took out.       The child<\/p>\n
    was dead and he put the child under a tree. He saw<\/p>\n
    that near the bridge, two men, one lady and two<\/p>\n
    children were standing. He took the deadbody towards
\n                             [3]<\/p>\n
 them        and the girl standing        there named Lassi<\/p>\n
 identified the dead body to be of her younger brother<\/p>\n
 Prabhu.       On inquiring , the lady disclosed her name<\/p>\n
 as Shankeri and stated that she was ill-treated by her<\/p>\n
 father-in-law Dhulji and husband Gautam, who turned<\/p>\n
 her alongwith her children out of house after beating.<\/p>\n
 She further stated that they were hungry and as she<\/p>\n
 was fade up with life, she decided to commit suicide<\/p>\n
 and had pushed the children in the canal.<\/p>\n
2.2   On the basis of aforesaid report, a case under<\/p>\n
 Sec.304 IPC bearing FIR No.112\/1986 was registered<\/p>\n
 at Police Station Sadar, Banswara and investigation<\/p>\n
 started. During the course of investigation, inquest on<\/p>\n
 the dead body of deceased Prabhu Ram was held and<\/p>\n
 thereafter it was sent for autopsy. Panchnama of the<\/p>\n
 scene of occurrence was prepared and the statements<\/p>\n
 of witnesses were recorded.\n<\/p>\n
2.3     On    completion   of     investigation,   as   sufficient<\/p>\n
 incriminating evidence was found against accused<\/p>\n
 Shankeri, she was chargesheeted for the offence under<\/p>\n
 Sec.304 and 307 IPC in the Court of Chief Judicial<\/p>\n
 Magistrate, Banswara.\n<\/p>\n
                             [4]<\/p>\n
2.4   As the offence punishable under Sec.304 & 307 IPC<\/p>\n
  is exclusively triable by the Court of Sessions, the<\/p>\n
  learned Judicial Magistrate committed the case to the<\/p>\n
  Sessions Court, Banswara.\n<\/p>\n
2.5   The learned Sessions Judge , Banswara (trial Court,<\/p>\n
  for short), who conducted the trial, framed charge<\/p>\n
  against   the   accused    for   commission   of   offence<\/p>\n
  punishable under Sec.302 & 307 IPC. The charge was<\/p>\n
  read over and explained to the accused, who pleaded<\/p>\n
  innocence and claimed to be tried therefore she was<\/p>\n
  put to trial.\n<\/p>\n
2.6    To prove the culpability of the accused, the<\/p>\n
  prosecution examined as many as 8 witnesses and<\/p>\n
  relied on their oral testimony.     The prosecution also<\/p>\n
  produced in all 9 documents which were exhibited to<\/p>\n
  prove the charge levelled against the accused and were<\/p>\n
  relied upon.\n<\/p>\n
2.7 The trial Court, thereafter, recorded statement of<\/p>\n
  accused under Sec.313 of the Code, wherein she<\/p>\n
  denied the case of prosecution and stated that a false<\/p>\n
  case involving her has been made out by the police<\/p>\n
  and further stated that she is innocent . In her further
\n                                 [5]<\/p>\n
    statement she stated that while she was serving<\/p>\n
    drinking water from canal to her three children, they<\/p>\n
    fell down in the canal.\n<\/p>\n
  2.8       On appreciation, analysis and scrutiny of the<\/p>\n
    evidence on record, trial Court came to the conclusion<\/p>\n
    that accused had thrown her three children into canal<\/p>\n
    on the basis of extra-judicial confession of accused<\/p>\n
    before PW2 Hurmal & PW3 Hurta, and out of the three<\/p>\n
    children thrown in the canal, two survived and one<\/p>\n
    died,    therefore,   the   prosecution   has   successfully<\/p>\n
    established that the accused has committed offence of<\/p>\n
    murder of her child Prabhu and attempted to commit<\/p>\n
    murder her two other children and on the basis of that<\/p>\n
    finding the trial Court has found the accused guilty for<\/p>\n
    the offence      under Sec.302 IPC & 307 IPC and<\/p>\n
    accordingly convicted and sentenced her, to which the<\/p>\n
    reference has been made in earlier paragraph of this<\/p>\n
    judgment.\n<\/p>\n<\/p>\n
3.Mr. Sanjay Mathur, learned counsel for the accused<\/p>\n
 appellant submitted that there is absolutely no evidence<\/p>\n
 on record to show that who took out the body of Prabhu<\/p>\n
 from canal and in what circumstances.               It is also<\/p>\n
 emphatically submitted by the learned counsel that the
\n                             [6]<\/p>\n
 sole eye witness is PW8 Lassi, the daughter of the<\/p>\n
 accused, who is projected as eye witness but she has not<\/p>\n
 supported the prosecution case.       She has not been<\/p>\n
 declared hostile nor has been cross examined, therefore,<\/p>\n
 if her evidence is taken on its face value, then no case is<\/p>\n
 made out against the accused. It is also pointed out by<\/p>\n
 the learned counsel that PW1 Kanti & PW2 Hurmal are<\/p>\n
 projected as witnesses of alleged extra-judicial confession<\/p>\n
 made by the accused but infact there is no evidence to<\/p>\n
 that effect.   They have not stated anything before the<\/p>\n
 Court that the accused made confession before them,<\/p>\n
 however, the trial Court has misread their evidence and<\/p>\n
 convicted the accused.\n<\/p>\n<\/p>\n
                    On the aforesaid premise, according to<\/p>\n
 the learned counsel, there is no evidence worth name to<\/p>\n
 connect the accused with the crime, therefore, the<\/p>\n
 prosecution has miserably failed to prove the charge<\/p>\n
 levelled against the accused.    He, therefore, submitted<\/p>\n
 that the conviction and sentence recorded against the<\/p>\n
 accused appellant deserves to be quashed and set aside<\/p>\n
 by allowing this appeal and thereby acquitting the<\/p>\n
 accused of the offence with which she was charged.<\/p>\n
4.Per contra, Mr. A.R. Nikub, learned Public Prosecutor
\n                                [7]<\/p>\n
  supported the judgment and order of conviction and<\/p>\n
  sentence recorded against the accused.             According to<\/p>\n
  him, on the basis of extra-judicial confession made by the<\/p>\n
  accused     before   PW1    Kanti     &    PW2     Hurmal,    the<\/p>\n
  prosecution has successfully established the guilt of the<\/p>\n
  accused, therefore, no interference is called for in the<\/p>\n
  impugned     judgment      and     order   of    conviction   and<\/p>\n
  sentence. He, therefore, urged to dismiss the appeal.<\/p>\n
5.We have considered the submissions advanced by learned<\/p>\n
  counsel for the parties and we have perused the<\/p>\n
  impugned judgment and order and the proceedings<\/p>\n
  recorded by    the trial Court.      We have also undergone<\/p>\n
  through vital features of the case and the evidence on<\/p>\n
  record, which is read by the learned counsel for              the<\/p>\n
  parities.\n<\/p>\n<\/p>\n
6.At the outset, it may be stated that the prosecution case<\/p>\n
  against the accused is based on direct evidence of PW8<\/p>\n
  Lassi, the minor daughter of accused of the age of 6-7<\/p>\n
  years, who is projected as an eye witness and the<\/p>\n
  evidence of PW1 Kanti & PW2 Hurmal, who have been<\/p>\n
  projected as the witnesses to the extra-judicial confession<\/p>\n
  made by the accused before them.\n<\/p>\n
                              [8]<\/p>\n
7. It is also pertinent to mention here that the incident has<\/p>\n
  been reported by PW5 Bhuriya s\/o Onkar, as such his<\/p>\n
  evidence is also to be taken note of. PW5 Bhuriya in his<\/p>\n
  examination in chief has inter-alia testified before the<\/p>\n
  Court that it is about 6 months back when he, Lalu and<\/p>\n
  Narji were going to their house from Banswara and<\/p>\n
  reached near the canal       where new prison is being<\/p>\n
  constructed. It was about 2-3 O’ Clock at that time. He<\/p>\n
  also testified that the accused present in court was<\/p>\n
  sitting   with a dead child in her lap and many people<\/p>\n
  gathered there, who asked him to give information to the<\/p>\n
  police so he informed the police. On reappraisal of the<\/p>\n
  evidence of this witness it only reveals that he is simply<\/p>\n
  an informant and has given report to the effect that one<\/p>\n
  lady was sitting near the canal with dead child in her lap.<\/p>\n
8.Now the important witness is PW8 Lassi, who has been<\/p>\n
  projected as an eye witness.      She is daughter of the<\/p>\n
  accused aged 6-7 years.     She has inter-alia stated that<\/p>\n
  the name of her mother is Shankeri. Nanu is her brother<\/p>\n
  and Prabhu who died was also her brother.       On pointed<\/p>\n
  question asked by the Court as to whether she was<\/p>\n
  thrown in the canal water, she has replied that while<\/p>\n
  drinking water she fell down and further stated that her<\/p>\n
  mother had not thrown.     Her deceased brother also while
\n                                    [9]<\/p>\n
     drinking water from canal fell down.              It may be<\/p>\n
     appreciated that she has neither been declared hostile nor<\/p>\n
     she has been cross examined by the prosecution.           She is<\/p>\n
     the eye witness, therefore, there is no reason to discard<\/p>\n
     her oral testimony and if we accept her oral testimony,<\/p>\n
     then according to us, no case is made out against the<\/p>\n
     accused for the offence under Sec.307 & 307 IPC.<\/p>\n
9.    The prosecution in this case has relied upon oral<\/p>\n
     testimony     of   PW1   Kanti,     who     according    to    the<\/p>\n
     prosecution was the witness of extra-judicial confession<\/p>\n
     made by the accused before him. He has inter-alia stated<\/p>\n
     about   6-7    months    he   was   doing    labour     work   on<\/p>\n
     Madareshwar road. It was the time for taking lunch and<\/p>\n
     at about 1 O’Clock he and Hurma had gone together to<\/p>\n
     take bath in the canal near puliya a bit ahead of kagadi<\/p>\n
     and after taking bath when they were coming out of<\/p>\n
     canal, they saw two children drowning in the water who<\/p>\n
     were screaming.      He and Hurma both jumped into the<\/p>\n
     water and put them out. The child to whom he saved was<\/p>\n
     about 3-4 years old and the child to whom Hurma took<\/p>\n
     out was about 5-6 years old.        He further testified that a<\/p>\n
     woman was coming         alongside the canal but she didn’t<\/p>\n
     say anything.      Kanti S\/o Bheriya came there with one<\/p>\n
     child, who was dead, and on seeing him the two children,
\n                            [10]<\/p>\n
  who were saved, stated that he was their brother Prabhu.<\/p>\n
  He also testified that he did not know the name of the<\/p>\n
  accused and stated that Bhuriya informed the police.<\/p>\n
  According to him, when the children were asked as to<\/p>\n
  how they fell in the canal they replied that their mother<\/p>\n
  had thrown them in the canal and on asking the accused<\/p>\n
  she stated that she would have drowned in the canal<\/p>\n
  alongwith the children because her husband after taking<\/p>\n
  liquor beats her and her father-in-law and mother-in-law<\/p>\n
  also torture her, so she wanted to die.       In his cross<\/p>\n
  examination, he stated nobody else was there where they<\/p>\n
  were bathing and when Prabhu was brought out 10-12<\/p>\n
  persons collected there. According to him the dead body<\/p>\n
  of Prabhu was brought by Kanti S\/o Bheriya.<\/p>\n
10.   The prosecution also examined and relied upon oral<\/p>\n
  testimony of PW2 Hurmal, who has testified that about 6<\/p>\n
  months back when he was working at Madareshwar road,<\/p>\n
  he and Kanti S\/o Thavra both had gone to kagdi canal for<\/p>\n
  bathing. When they came out after bathing, they saw two<\/p>\n
  children flowing who were shouting, and out of them the<\/p>\n
  one who was flowing ahead was a girl. On that, he and<\/p>\n
  Kanti   S\/o Thavra both jumped in the canal and after<\/p>\n
  catching hold of both the children put them out. Of those<\/p>\n
  two children, one was a boy and another a girl. The age
\n                            [11]<\/p>\n
of the boy was about 5-6 years.            He did not know<\/p>\n
whether the girl was older or younger. He testified that<\/p>\n
both the children told that their mother had thrown them<\/p>\n
into canal. After some time, the mother of those children<\/p>\n
reached there walking alongside the canal and on seeing<\/p>\n
their mother, the children        clinged to them and stated<\/p>\n
that they would not go with their mother and would<\/p>\n
remain with them. At the first,       the mother of children<\/p>\n
said that they were not her children but after sometime<\/p>\n
when nearby persons came on the spot and on giving<\/p>\n
threatening   said   that her husband tortures her so she<\/p>\n
left her house and said that her children had themselves<\/p>\n
fallen in the canal. After some time       Kanti S\/o Bheriya<\/p>\n
came there with a dead child of about 1 month and the<\/p>\n
boy who was rescued by them on seeing the dead child<\/p>\n
stated that this was his brother Prabhu. Thereafter, the<\/p>\n
mother of children said that on account of tortures of her<\/p>\n
husband she threw the children in the canal. He further<\/p>\n
testified that the mother of children didn’t cry seeing the<\/p>\n
dead child.   He also testified that the mother of children<\/p>\n
told her husband’s name as Gautam and the name of<\/p>\n
village as Chhatripada but didn’t tell her name. In cross<\/p>\n
examination, the witness testified that at the place where<\/p>\n
the children were rescued, 6-7 man had reached. He<\/p>\n
stated that he could not identify the accused in the Court.\n<\/p>\n
                             [12]<\/p>\n
  He stated that someone else had asked that lady about<\/p>\n
  the incident but his name is not known to him.         The<\/p>\n
  witness further testified that thereafter Kanti had asked<\/p>\n
  the lady about incident and she replied that her husband<\/p>\n
  tortured her so she would leave taking the children with<\/p>\n
  her.   He denied the suggestion that other people were<\/p>\n
  also bathing there besides him and Kanti.<\/p>\n
11. On re-appraisal of the evidence of aforesaid witnesses it<\/p>\n
  is seen that the witnesses came to know from children<\/p>\n
  that their mother had thrown them to canal. It is further<\/p>\n
  revealed from their evidence that out of three children<\/p>\n
  one child died and two survived but which child stated<\/p>\n
  before them that her mother had thrown them to the<\/p>\n
  canal is not clear. In the entire breadth and length of the<\/p>\n
  evidence, there is no voluntary extra-judicial confession<\/p>\n
  made by the accused. If we examine the oral testimony<\/p>\n
  of PW8 Lassi, she has not supported the prosecution case<\/p>\n
  and when direct evidence is available then there is no<\/p>\n
  reason to discard the oral testimony of eye witness.<\/p>\n
  Besides this, the evidence of PW1 Kanti & PW2 Hurmal is<\/p>\n
  hearsay evidence.        It is also not clear from their<\/p>\n
  evidence which child informed them about this incident<\/p>\n
  and when informant PW8 Lassi, the eye witness to the<\/p>\n
  incident, herself has not supported the prosecution case,
\n                                [13]<\/p>\n
 then on the basis of hearsay evidence of PW1 Kanti &<\/p>\n
 PW2 Hurmal prosecution is unable to establish the case<\/p>\n
 against accused appellant Shankeri beyond reasonable<\/p>\n
 doubt, therefore, accused deserves the benefit of doubt.<\/p>\n
12.It is settled principle of law that when the direct<\/p>\n
 evidence of eye witness does not support the prosecution<\/p>\n
 case, in that case the evidence of PW1 & PW2 who have<\/p>\n
 deposed before the Court on the basis of information<\/p>\n
 supplied by eye witness their evidence cannot be relied<\/p>\n
 upon to base the conviction.\n<\/p>\n<\/p>\n
13. On overall view of the matter, according to us,<\/p>\n
 prosecution has miserably failed to establish beyond<\/p>\n
 reasonable doubt the case against the accused therefore,<\/p>\n
 accused deserves to be acquitted by giving her benefit of<\/p>\n
 doubt   and    the    impugned       judgment   and     order   of<\/p>\n
 conviction recorded against the accused deserves to be<\/p>\n
 quashed and set aside by allowing this appeal and<\/p>\n
 thereby acquitting the accused of the offence with which<\/p>\n
 she was charged.\n<\/p>\n<\/p>\n
14.For the foregoing reasons, the appeal succeeds and<\/p>\n
 accordingly it is allowed. The impugned judgment of<\/p>\n
 conviction    and    order   of   sentence   recorded    against
\n                             [14]<\/p>\n
  accused appellant for the offence under Sec.302 and 307<\/p>\n
  IPC is hereby quashed and set aside and accused<\/p>\n
  Shankeri is acquitted of the offence under Sec.302 & 307<\/p>\n
  IPC.\n<\/p>\n<\/p>\n
15. Accused appellant is on bail. Her bail bonds stand<\/p>\n
  cancelled and the sureties discharged.<\/p>\n
 ( GOPAL KRISHAN VYAS ),J.                 ( AM KAPADIA ),J.<\/p>\n
jpa\/\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Rajasthan High Court – Jodhpur Smt. Shankeri vs State on 29 March, 2010 [1] IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR ——————————————————– 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,19],"tags":[],"class_list":["post-83039","post","type-post","status-publish","format-standard","hentry","category-high-court","category-rajasthan-high-court-jodhpur"],"yoast_head":"\nSmt. 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