1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR JUDGMENT Smt. Rami Vs. State of Rajasthan D.B.CRIMINAL APPEAL NO.309/1983 Date of Judgment : 31st Mar 2009 PRESENT HON'BLE SHRI N.P.GUPTA,J. HON'BLE SHRI KISHAN SWAROOP CHAUDHARI,J. Mr. Digvijay Singh Jasol for Mr. Manish Shishodia, for the appellant. Mr. K.R. Vishnoi, P.P. BY THE COURT: (PER HON'BLE MR. CHAUDHARI, J.) This appeal has been filed against the judgment dated 18.8.1983 passed by the learned Sessions Judge, Pratapgarh camp at Chittorgarh by which he convicted the accused appellant under Sec. 302, 307 and 403 IPC and sentenced her to undergo life imprisonment and fine of Rs. 100/-, in default of payment of fine to further undergo one month's rigorous imprisonment under Sec. 302 IPC sentenced to seven years' rigorous imprisonment and fine of Rs. 100/-, in default of payment of fine to further undergo one month's rigorous imprisonment under Sec. 307 IPC and sentenced to 2 years' rigorous imprisonment under Sec. 403 IPC and all sentences were to run concurrently. The brief facts of the case are that PW/2 Roshanlal lodged FIR Ex. P/1 on 18.8.1981 at 1.50 p.m. and alleged that at 9-10 a.m. accused Rami came to complainant's brother Bhanwarlal's residence and asked his nieces Paras and Munna to accompany her to see crop of maize, while returning back from well, accused told them that in the night she saw dream that there is money in the well of Babru which 2 can be fetched by them, if they act according to her direction. Then near Babru's well two pits were made and they prepared rolls of soil, brought flowers of `Akra” and collected all silver and gold ornaments of Paras and Munna and put them in a cloth near pit. The accused gave rolls of soil to Paras and Munna and asked them to throw rolls in well, when both of them went near well, the accused pushed them in well. Consequently, Munna died but, as Paras was knowing swimming, she cried. Magna came on spot and made a hue & cry then Mangu, Teka, Jamnalal came there and dead body of Munna alongwith herself were brought out of the well. Paras narrated all the story. On this report, case under Sec. 302, 307 and 379 IPC was registered and after completion of investigation challan was filed in the court of Munsif and Judicial Magistrate Dungla under Sec. 302, 307, 364 and 397 IPC which was committed to the court of Sessions Judge, Pratapgarh camp Chittorgarh. Charge was framed under Sec. 302, 307 and 403 IPC against accused to which she denied. After recording statements of 11 witnesses statement under Sec. 313 Cr.P.C. was recorded. Defence examined two witnesses and after hearing arguments, accused appellant was convicted and sentenced as aforesaid. Learned counsel for the appellant argued that prosecution has failed to prove that accused pushed deceased Munna and victim Paras in the well and as per post-mortem report, incident is totally unbelievable, the trial court itself has not relied on recovery of ornaments on the information and at the instance of appellant, even then, the trial court has committed error in convicting the accused appellant, hence, the appeal may be accepted and the appellant may be acquitted of the charges. 3 On the other hand, learned Public Prosecutor argued that trial court has given cogent reasons for conviction and the prosecution has proved the case against the accused appellant beyond reasonable doubt, hence, appeal of the accused appellant may be dismissed. The sole eye witness examined by the prosecution is PW/1 Paras. She has stated in her statement that the accused is her cousin. Her husband had come there to take her with him and her parents were sending her with her husband and at that time, she was wearing gold and silver ornaments. In the morning, at 7-8 a.m., the accused came and asked her to go to well to see the crop of maize and vegetable, then, she along with her sister Munna accompanied accused to the well. When they reached to the well of Babru, the accused told her that in dream, she saw the Goddess “Laxmi' so they should dig a pit to excavate wealth. They dug a pit and as per direction of the accused, both of them put their ornaments in the pit then, they prepared soil rolls and first of all accused threw 7 soil rolls in the well then, she started throwing soil rolls in the well and at that time, the accused pushed her in the well which was having water. There were no stairs in the well but, she caught hold of rock and then, saw that Munna was pushed in the well by the accused. Munna died and on her cries, Magna and many other persons came there and then, she and Munna's body were taken out of the well. When she came out of the well, neither ornaments nor the accused was there. She has further stated that she identified her ornaments in identification parade. She has admitted in cross examination that there were stones in the well but no injury was caused to her. She caught rock of (Dabra). She admitted that when she was taken out of the well, dead body of Munna was floating in the well. She has denied the suggestion that 4 accidentally Munna fell in the well when she was seeing in the well, she also fell in the well. She denied that Munna was taken out of well before her. She has also denied the suggestion that to save Munna, she jumped in the well and she has falsely implicated the accused. She also admitted that the accused's husband also came in the village to take her with him. Her Saree remained in the well. PW/2 Roshan has stated that her niece Paras and Munna went with the accused at 8-8.30 a.m. And after two hours he heard that girls have fallen in the well. Paras and dead body of Munna were taken out of well by Teka and other persons. He has also supported the story projected by PW/1 Paras. He further stated that he went to Police Station along with Sajjan Singh and lodged report Ex. P/1. In cross examination he admitted that he reached near the well and first of all Munna's body was taken out of the well and then Paras was taken out of the well. He has also admitted that neither Munna nor Paras received any external injury. PW/3 Magna has stated that he with the help of other persons took out of the well, the dead body of Munna and Paras. Neither he asked to Paras nor she revealed that how they fell in the well. PW/4 Babru has also stated that when Paras was taken out of the well, there was 10-12 hand water in the well. PW/5 Kajor @ Teka has also stated that he along with the help of the other persons first of all took out Munna from the well and then Paras was taken out of the well. Munna had died. Neither he talked with Paras nor she revealed anything to him. PW/7 Jagdish, the husband of Paras has stated that he went to her in laws' house to take Paras with him. He cannot say where Paras went just before their departure. All the prosecution witnesses have stated in their statements 5 that Munna 's dead body and Paras were taken out of the well by rope and they had no external injuries on their body. PW/11 Dr. Sujan mal Jain has also stated that he conducted post mortem of the body of Munna on 19.8.1981 at 11 a.m. and prepared report Ex. P/15 which bears his signature. As per this report, there was no external injury on the body of deceased Munna. It is surprising that neither Munna nor Paras received any injury while falling in the deep well, though there were stones in the well and according to Paras herself, she caught hold of a rock in the well. As per statement of all the prosecution witnesses, person falling in the well will not sustain injury only if he falls straight otherwise he would get injuries. There is sole testimony of Paras to prove the fact that accused pushed Paras and Munna in the well. Her statements does not inspire confidence because she did not disclose the incident to other persons, who came on the spot and took her out of the well. In natural course, she should have disclosed all the story to the persons present on the spot at the time of taking them out of well. She has stated that first of all, she was taken out of well and later on Munna's body was taken out of well, whereas PW/2 Roshan and PW/5 Teka has stated that first of all Munna's body was taken out of well and then she was taken out of well . When she was ready to depart from her house with her husband, apparently, there was no occasion for her to go along with her sister and accused to see crop on the well. PW/7 Jagdish who is her husband is also not aware where Paras went before their departure. He has also not said that any such incident took place. In normal course, he must have been informed by Paras or other persons about the incident. PW/11 Dr. Sujanmal Jain has admitted in his cross examination that dead body of the deceased Munna must have remained in the 6 water for 8-12 hours. If this statement is believed, Munna must have been pushed in the well between 10 p.m. of 17.8.1981 to 2 a.m. of 18.8.1981. The learned trial court has discarded opinion of doctor, as no cogent reason has been given for this opinion. At page 300 of Taylor's Principles and Practice of Medical Jurisprudence it has been observed that: “Simpson suggests that in the Thames the time of the year is as good a guide as any. The intervals involved are some two days in June to August, three to five days in April, May, September and October, 10 to 14 days in early winter (November and December), and in January and February, the coldest months, the body may not come up at all as the process of decomposition is at a standstill.” At page 978 of Lyon's Medical Jurisprudence & Toxicology Eleventh Edition 2005 it has been observed that: “Time within which bodies start floating: The body eventually comes to the surface, if not entangled, when putrefactive gases make it sufficiently light to float. The length of time for this varies with the temperature of the water, with the condition of the body, and with the character of the water, whether fresh or salt. Fat bodies float earlier than thin ones. Bodies come to the surface sooner in salt than in fresh water. In hot weather a body in fresh water might float within 24 hours of drowning, but it is seldom possible to estimate from the condition of the body the interval since death. It would be safe, however, to say that a body that has assumed the characteristic attitude of the floater, has most probably been dead for more than a day.” These opinions clearly indicate that dead body can not float on surface at least before 24 hours. It is beyond imagination that dead body of 5 years' girl will float on surface within an hour of drowning. This alone circumstance is sufficient to discard whole prosecution story. 7 Thus, it becomes clear that Munna was not pushed by the accused on 18.8.1981 at about 8 a.m. and in such circumstances, it can very well be said that Paras was also not pushed in the well by the accused on that day at that time. Whole prosecution story is nothing but full of concoctions. As far recovery of ornaments and their identification is concerned, the learned Trial court has rightly not placed reliance on recovery of articles. PW/2 Roshan has admitted in his cross examination that Sarpanch asked Madhunath to take care of recovered ornaments. He admitted that he had knowledge where the ornaments were lying before the SHO came on the spot. PW/9 Sajjan Singh who was Sarpanch of village karsana has also admitted in cross examination that he was aware about the ornaments before police reached on the spot and he had deputed Madhunath to take care of ornaments. Identification memo also reveals that requisite articles were not mixed for identification purposes. Hence, recovery of articles on the information and at the instance of accused and their identification cannot be believed and this recovery does not link the accused with the crime, specially when recovered articles contained some more articles which were not of Paras. In the light of the aforesaid discussion, it becomes clear that prosecution has failed to prove charges against accused and lower court has committed error in placing reliance on the statement of Paras and convicting the accused of the aforesaid charges. Consequently, the appeal of the appellant Rami is accepted and 8 judgment dated 18.8.1983 passed by learned Sessions Judge Pratapgarh camp Chittorgarh, by which he convicted the accused appellant under Sec. 302, 307 and 403 IPC is set aside. The accused appellant is on bail. Her bail bond stands cancelled and she need not to surrender. (KISHAN SWAROOP CHAUDHARI), J. (N.P. GUPTA), J. ns.