IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. A. No. 761-DB of 2007 DATE OF DECISION : 18.02.2009 Jeeto ... APPELLANT Versus The State of Punjab ..... RESPONDENT CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MRS. JUSTICE DAYA CHAUDHARY Present: Mr. Dinesh Ghai, Advocate, for the appellant. Mrs. Manjari Nehru Kaul, D.A.G., Punjab, for the respondent-State. * * * SATISH KUMAR MITTAL , J. 1. Accused Jeeto wife of Raj Kumar alias Raju has filed this appeal against the judgment and order dated 26.7.2007, passed by Sessions Judge, Fatehgarh Sahib, whereby she has been convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs. 5,000/- under Section 302 IPC, in case FIR No. 265 dated 9.9.2005 registered at Police Station Sirhind, for committing the murder of a 4 years old son of her Devar (younger brother of husband). 2. In brief, as per the prosecution version, on 9.9.2005, at about 1.00 P.M., appellant Jeeto threw child Vinod son of Mohinder in the canal minor, Sidhuwal from bridge. The said occurrence was seen by Gurdeep Crl. A. No. 761-DB of 2007 -2- Singh (complainant) son of Devinder Singh resident of village Sidhuwal, Gurtej Singh son of Nirmail Singh and Nirmail Singh son of Ajit Singh of the same village. The aforesaid FIR was registered on the statement of Gurdeep Singh (PW.3). As per his statement, on 9.9.2005, he along with Gurtej Singh came on the canal. They met Nirmail Singh. When all the three persons were talking with each other standing near the canal bridge, they saw a lady, aged about 35 years, coming on foot from Madhupur Chowk side by holding the fingers of a child. The age of the child was about 4/5 years. After crossing the canal bridge, she threw the said child in the canal minor, in their presence. After that, when the said lady was returning back, they stopped her and asked her name. She told them her name as Jeeto wife of Raju resident of Rajpura. She also told that name of the child was Vinod son of Mohinder. The complainant further stated that immediately, by leaving Nirmail Singh near the said lady, both of them tried to search the child in the canal. In the meanwhile, some more people of the village came at the spot. All of them tried to search the body of the child in the canal. In the meanwhile, the police party also came there. At 4.30 P.M., the dead body was found in the canal and the same was fished out. Smt. Jeeto, who was apprehended at the spot, was handed over to the police. The dead body of the child was taken to Civil Hospital, Fatehgarh Sahib, on the same day, but his post mortem was conducted on the next day i.e. on 10.9.2005 at 11.20 A.M., by Dr. Jai Deep Singh Chahal (PW.1). In the opinion of the Doctor, the cause of death was due to drowning, which was sufficient to Crl. A. No. 761-DB of 2007 -3- cause death in the ordinary course of nature. 3. During investigation, statement (Mark A) of Mohinder, father of the deceased child, was recorded. In his statement before the police, he stated that they are 7 brothers and 4 sisters. Three brothers are un-married and all others are married. He further stated that he had four sons. Vinod was his third son. He along with his wife Somti was living separately, whereas his brother Raj Kumar alias Raju along with his wife Jeeto (appellant) was living separately. He further stated that his wife Somti used to clean the houses of people and he sells Rories of old bricks after breaking and does the labour work with the contractor. On 9.9.2005, he had gone early in the morning on duty as daily routine. His wife had also gone for doing work as her daily routine. When he came to his house for lunch, then his wife was weeping and she told him that their son Vinod was missing and Jeeto (her Jethani) was also not at home. He further stated that his wife told him that on enquiry, she came to know that Jeeto has kidnapped their son Vinod. The witness further stated that when they were searching for their child, some policemen came to their home and told that Smt. Jeeto had killed their son Vinod by throwing him in the canal minor near the bridge of canal of Sirhind of Village Sidhuwal. On receiving the said information, they immediately went at the spot and found their child dead. In that statement, it was further stated by Mohinder that his brother's wife Jeeto under mis-belief caused by some `Sadhu' `Padhey' that she will conceive a child, had murdered his child Vinod. Crl. A. No. 761-DB of 2007 -4- 4. After completion of investigation, challan was presented against Jeeto. Charge under Section 302 IPC was framed against her, to which she did not plead guilty and claimed trial. 5. In order to prove its case, the prosecution examined eight witnesses, including PW.1 Dr. Jaideep Singh Chahal, PW.3 Gurdeep Singh, complainant-cum-eye witness, PW.4 Nirmail Singh, another eye witness, PW.6 ASI Ajaib Singh, the Investigating Officer and PW.8 Mohinder Singh, father of the deceased child, who was declared hostile as he resiled from his earlier statement Mark A. 6. In his statement under Section 313 Cr.P.C., the accused denied all the incriminating evidence appearing against her and claimed innocence and false implication. In defence, the accused examined DW.1 Roop Chand to prove that the child was being properly looked after by her. She further examined DW.2 Som Nath, grand-mother of the child, to prove that child Vinod was adopted by accused Jeeto and she did not throw him in the canal minor and caused his death. (It is pertinent to mention here that this witness was not an eye witness and was not present at the place of occurrence). 7. The trial court, after relying upon the statements of both the eye witnesses, namely PW.3 Gurdeep Singh and PW.4 Nirmail Singh, and other circumstances of the case, convicted and sentenced the appellant, as mentioned in the earlier part of the judgment. 8. Learned counsel for the appellant submitted that in the present case, the prosecution has failed to prove the guilt against the appellant Crl. A. No. 761-DB of 2007 -5- beyond reasonable doubt. He submitted that in the present case, there was a delay in lodging the FIR and by taking benefit of the said delay, the appellant was falsely implicated in the alleged crime, on the basis of statements of two witnesses, who had not seen the alleged occurrence. He further submitted that the testimonies of the two eye witnesses are not trust worthy and on the basis of their testimonies, it is not safe to convict the appellant for the offence punishable under Section 302 IPC. Learned counsel, while referring to the statements of PW.3 Gurdeep Singh and PW.4 Nirmail Singh, submitted that there are some major contradictions in their statements, which clearly indicate that they were not deposing correctly in the court. In this regard, learned counsel pointed out that PW.3 Gurdeep Singh in his statement has stated that ASI Ajaib Singh had recorded his statement and the statements of Gurtej Singh and Nirmail Singh in the Police Station, whereas PW.4 Nirmail Singh had stated that their statements were recorded at the spot. Secondly, learned counsel pointed out that before the police, PW.3 Gurdeep Singh stated that after crossing the canal bridge, the appellant threw the child in the canal minor, whereas in the Court, it was stated by him that she threw the child in the canal from the bridge. Learned counsel further argued that in his initial statement before the police, Gurdeep Singh had stated that accused Jeeto had thrown the child in the canal minor due to enmity. Learned counsel submitted that prior to the said occurrence, Gurdeep Singh did not know accused Jeeto, therefore, he was not in a position to state that accused Jeeto threw the child in the canal due Crl. A. No. 761-DB of 2007 -6- to enmity. Learned counsel submitted that these facts indicate that Gurdeep Singh and Nirmail Singh had not seen the occurrence and have deposed falsely. Thirdly, learned counsel for the appellant submitted that the alleged motive of the crime has not been proved by the prosecution. PW.8 Mohinder Singh, who had stated before the police about the motive of the crime in his statement Mark A, has not at all supported the prosecution version. In his statement before the Court, he has stated that he did not make any statement before the police. He has also stated that accused Jeeto was wife of his brother and they were living in a joint family happily. However, he has admitted in his statement that he had identified the dead body of his son in the Hospital. Learned counsel submitted that since the motive has not been proved, therefore, the prosecution version has become doubtful, therefore, the benefit of doubt must be given to the appellant. The learned counsel, while relying upon the decision of the Supreme Court in State of U.P. v. Babu & Ors., 2004 (1) Criminal Court Cases 290, submitted that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. Learned counsel further submitted that in case a prosecution witness is declared hostile, his statement cannot be totally rejected. If on close scrutiny, one portion which is in favour of the prosecution or the accused is found reliable, the same should be accepted. In the last, learned counsel for the appellant argued that in the present case, the prosecution has failed to prove the intention of the Crl. A. No. 761-DB of 2007 -7- appellant to cause the death of child, because PW.8 Mohinder Singh, father of the deceased child, has not supported the prosecution version. Therefore, at the most, the appellant is liable to be convicted and punished under Section 304 Part II IPC. 9. On the other hand, learned counsel for the respondent-State submitted that case of the prosecution has been fully proved by the statements of two eye witnesses. She further submitted that the distance between house of the accused and the place of occurrence is 25 Kms. Therefore, it cannot be presumed that the child, who was 4 years old, himself went to the place of occurrence. She submitted that as per the eye witnesses, the appellant had brought the child at the place of occurrence and threw him in the canal minor. She further argued that merely because PW.8 Mohinder Singh, father of the deceased, has not supported the prosecution version qua the motive, that itself is not sufficient to discard the statements of two independent eye witnesses, who had seen the alleged occurrence. 10. After hearing counsel for the parties and going through the record of the case, we do not find any merit in this appeal. The most important fact in this case is that the distance between the house of the accused and the canal minor of Sidhuwal, in which the child was thrown by the accused, is about 25 Kms. This fact has not been disputed by learned counsel for the appellant. So, there is no possibility that a 4 years old child himself went to the canal minor at a distance of 25 Kms. from his house and fell in it. It has been proved that he was taken by the appellant to the canal. Crl. A. No. 761-DB of 2007 -8- At about 1.00 P.M., when she threw the child in the canal minor from the canal bridge, she was seen by Gurdeep Singh, Gurtej Singh and Nirmail Singh. These three persons were residents of village Sudhuwal and belong to different caste, having no relation with the child, and were totally independent witnesses. At that time, they were not aware of the name and residence of the appellant. These three persons had not only seen the alleged occurrence, but they had apprehended the appellant till the arrival of the police, searched for the child in the canal, and with their efforts and the efforts of other people, who had collected at the spot, the child was fished out of the canal. By that time he had died. Out of these three persons, Gurdeep Singh and Nirmail Singh appeared in the witness box as PW.3 and PW.4, respectively, and fully supported the prosecution version. Their testimonies cannot be discarded on the ground that the third person, namely Gurtej Singh has not been examined by the prosecution as having been won over by the accused, or that there are some contradictions in their statements. In our view, the contradictions, which have been pointed out by learned counsel for the appellant in the statements of these two witnesses, are minor, which are bound to occur in the statements of such witnesses, with the passage of time. PW.6 ASI Ajaib Singh, the Investigating Officer, has categorically stated that on 9.9.2005, while he along with other police officials was on patrol duty near minor canal bridge in the area of Sidhuwal, they reached at the spot and at that time, both the witnesses along with the accused and other persons were present at the spot and they were searching Crl. A. No. 761-DB of 2007 -9- for the child in the canal minor. He further stated that with the help of the people, child was fished out, but by that time, he had died. Thereafter, the accused, who was present at the spot, was arrested and the dead body of the deceased child was taken to Civil Hospital, Fatehgarh Sahib for post mortem. The said witness has also stated that statements of both the eye witnesses were recorded at the spot and thereafter, FIR was registered. 11. In this case, the important feature is that the appellant was seen with the child by the independent witnesses at the spot. She was also seen throwing the child in the canal. She was immediately apprehended by them and was not allowed to go till the arrival of the police. She was arrested on the spot. The child was also fished out from the canal at 4.30 P.M., in her presence and in the presence of many other persons. These facts have been proved by the prosecution beyond reasonable doubt. Therefore, we are of the view that conviction of the appellant by the trial court is fully justified. We do not find any substance in the argument of learned counsel for the appellant that since the father of the deceased has resiled from his earlier statement Mark A, therefore, the motive has not been established, which creates a doubt in the prosecution version. In our opinion, merely because PW.8 Mohinder Singh, father of the deceased child, has resiled from his earlier statement, it does not create any dent in the prosecution version, which has been fully proved by the aforesaid two eye witnesses, who are wholly independent and whose statements are fully trust-worthy. 12. In our opinion, in the present case, there is no delay in lodging Crl. A. No. 761-DB of 2007 -10- the FIR. As per the prosecution version, the incident had taken place at 1.00 P.M. The appellant was apprehended at the spot by the eye witnesses. They also tried to search for the child in the canal. The police came at the spot at 3.00 P.M. The dead body of the child was fished out from the canal at 4.30 P.M. Thereafter, statement of Gurdeep Singh complainant was recorded at 4.30 P.M. and the FIR was registered at 5.00 P.M. The dead body was sent to Civil Hospital, Fatehgarh Sahib, at 6.00 P.M. The special report was delivered to the Duty Magistrate at 10.30 P.M. In view of these, we do not find any delay in registration of the FIR. 13. We do not agree with the contention of learned counsel for the appellant that in this case, the prosecution has not proved the intention of the accused to commit murder of the child, because the father of the child has resiled from his earlier statement. Two eye witnesses have categorically proved that the accused had thrown the child in the canal and thereafter tried to return back to her house. This conduct of the appellant itself establishes her intention. Therefore, the trial court, while relying upon the statements of two eye witnesses, has rightly convicted the appellant for the offence punishable under Section 302 IPC, for murdering a 4 years old child by throwing him in the canal minor. 14. We also do not agree with the contention of learned counsel for the appellant that in the instant case, the appellant is liable to be punished under Section 304 Part II IPC. In our opinion, case of the appellant is not covered by any of the Exceptions of Section 300 IPC, which define culpable Crl. A. No. 761-DB of 2007 -11- homicide not amounting to murder. Therefore, in the present case, the appellant cannot be punished under Section 304 Part II IPC. 15. In view of the above, we do not find any illegality in the conviction of the appellant for the offence under Section 302 IPC. Consequently, the conviction and sentence of the appellant, as recorded by the trial court, are upheld and the instant appeal is, accordingly, dismissed. ( SATISH KUMAR MITTAL ) JUDGE February 18, 2009 ( DAYA CHAUDHARY) ndj JUDGE