[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 Mathur for accused appellant. Mr. A.R. Nikub, Public Prosecutor. JUDGMENT ----- 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. [4] 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 [6] 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 [7] 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. [8] 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 [9] 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, [10] 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 [11] 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. [12] 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, [13] 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 [14] 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/