A.^^. HI6H COURT OF JU&ICATURE CHHATTIS&^RH: BILASPUR (C.e.) &IVISION BENCH; HON'BLE SHRIK.H.N. KURAN6A, CJ MON'BLE SHRI L.C. BHA&OO, J CRIAUNAL /tPPEAL N0.720 OF 2001 JU&SMENT FOK CONSIDERATION Sd/. ' L.C. Bhaduo Judge HON'BLE TH6 CHIEF JUSTECE tfai^Y^i • ~\ Sd/- ChiefJustice ^l^^;,- POST IT FOR:7>^/05/2003 Sd/- L.G. Bhsdoo Judge /@ HI6H COURT OF JUNCATURE CHHATTISSARH ; BILASPUR OIVISIQN BENCH;-HQN'BLESHRI K.H.N. KURANSA, CJ HON'BLE SHRI L.C. BH/tDOO, J CRIMINAL APPEAL N0.720 OF 2001 APPELLANT/ ACCUSED <j. Smt. Saraswatiboi Wife of Bhcgwat Sahu, Aqed 38 years, resident ofSandi, P.S. Mandir Hasoud, District Raipour. VERSUS RESPON&ENT : State of Chhattis9arh As Present; Shri S.K. AAishra, counsel for the accused/appellant. Miss. Sharmila Singhai, t>y. ©ovt. Adv., for the State/respondent. JU &6M ENT (Delivered on 7)^. of May. 2003) The following judgment of the Court was detivered byL.C. Bhadoo, J: — Accused/appsllant Sapaswatibai has preferred this criminal appeal under Section 374 (2) of the Code of Criminal Procedure being aggrieved by the judgment of conviction dated 23/07/2001 passed by the learned Seventh Additional Sessions Judge, ftaipur by which the ledr-ned Additional' Sessions Judge after holding the above aGCUsed/appellant guilty of the offence under Sections 302 ond 309 of 'A.: the Indian Penal Code convicted her under the said Sections and sentenced her to undergo imprisonment for life and to undergo simpie imprisonment for one year^ respectively. (2) The reievant prosecution story for the djsposal of this criminal appeal is th"at the accused/oppellant vuas living in villoge Sandi along with her- daughter .Santtshi Bai (since deceased) aged about five years. The accused is a iady of weak mind and she used to earn her livelihood by begging. She is also a lady of ill temperament. On the fatefu! day when the daughter of the accused demanded water, the accused beca.me angry and took her to a well She took her belongings and jumped in the well along with her daughter Santoshi Bai and belongings. At thaf time, PW-7 Laxman was passing through. On hearing the scream 'saye save',he peeped into the wetl and he started raisin9 th®cr-ies. On that, the villagers assembied and took out the accused and the deceased by a r-ope. By that time Santoshi Bai was already dead. The beiongings of the accused/appellant were aiso taken out. The village Kotwar namely Dev Singh Chouhon reported the matter to Hwndir 1-lasoud Police Station and thePolice registered Merg report (Ex.P/3). The Investigating Officer after reaching the scene of occurrence prepared the Ponchanama (Ex.P/5) of the dead body of deceased Santoshi Bai was prepared ond post mortem of the dettd body was got conducted. The belongings of the accused/oppellant were taken into possession. The first information report (Ex.P/10) was registered and after complation of the investigation, chaltan was filed against the accused/appellant under Sections 302 and 309 of tiie Indian Penal Code. •-.•^, (3) Learned Additional Sessions Judge framed the charges against the accused/appeliant which she denied and said that she has been falsely implicated. She fell in the well on account of the darkness and she raised the cries.'save save'; thereafter the-villagers came ond took her out. She is innocent. Inorder to prove the charges against the accused/cppellont the prosecution examined in all ten witnesses at -ff. the triai. The statemenf of.'the accused/appellant under section 313 of <\. the Gode of Criminal Procedure »as also recorded. She denied the statements of the witnesses. However, she admitted that she fel! in the weli and she was taken out hy the villagers and in the last she has said that when she was coming to her* house due to the darkness she fel! 'in the well and she raised cries 'save save', thereafter the yillagers came and she was taken out from the we!l. She is innocent. (4) Afterhearing the arguments of the learned Pubiic Prosecutor cmd the learned counsel for the accused, the learned Additional Sessions judge convicted caidsentenced the accused by the impugned judgment. (5) We have heard the iearned counsel for the accused/oppellont and also learned t)y fiovt. Advocate for . the State/respondent. (6) Lecrned counsel oppearing for the accused/oppellant argued that since the well in which the accused along with herdaughter Santoshi Bai fell wason the ieyelof theiond and there was no paropet wall around the well and due to the darkness in the night the accused/appellant could not notice the well and she fetl down in the well along . with her daughter and belonguigs. Moreover, the accused/appetlant is a lady of weak mind. Her meretal condition was also ^ •<. 'p not perfect and she used to earn her livelihood by begging. There was no occasion for her to jump in the well with the intention to murder her own daughter and to commrt- suicide. (7) In order to appreciate the arguments of the learned counsel appearing for the accused/appellomt, we have perused the evidence availabte on record. ^PW-l E>r. Sanjay Kumar Dadoo has said that he conducted the autopsy on the dead body of deceased Santoshi Bai and said that the deceased died on account of asphyxia due to drowning in the water. PW-2 Kuleshwar Prasad Sahu, brother of the accused/dppellant, has said that the accused is of weak mind ond she used to earn her livelihood by begging. The accused used to live in their village. The yillage Kotwar informed him thatafter throwing her daughter in the well the accused/appeliant herself jumped into the well. It is true that the weli is' on the side of the road and in the night there was darkness and there is no parapet wall nround the wett and it is on the level of the land. The Kotwar came to his houseand inforined about the incident. PW-3 Patwari Dilip Kumar Naik has said that he prepared the map (Ex.P/4). PW-4 Assistant Sub Inspector T.R. bewangon has said that the viliage Kotwar gave him Merg intimation on the basis of which he registered Merg No.60/2000 whieh is Ex.P./S. He reached the spot andprepared Ex.P/4, Panchonama (Ex.P/5) of the dead body and the sent the dead body for post mortem examination vide Ex.P/6. The accused/appellant was medicaliy examined on 05/12/2000 in the Primary Health Center, Mandir Hasoud. l-1e aiso seized the belongings of the accused vide Ex.P/7. TTie site map (Ex.P/8) was prepared. After completing usual formalities ond recording the statements of the witnesses, he filed the chalian. It is correct to say that the Kotwar'of theviilage informed bim that -Hie, .^ 1 i I B! ffiitfi1 accused was mentally ill lady and she used to earn her livelihood by begging, It is also correct thatthe well isadjacenttothestreet. PW- 5 Dr. K.S. Rai has said that he medically examined fhe accused, and three abrcisions ond one swelling were found on the bqdy of the accused/appellant. PW-6 Kotwar bev Singh Chouhars has said that on the fateful day in the night at aboutS.30 after taking meat hewent for stroll. He came back after JKaring the noise. The noise was coming from the side of Mahaveer' Chowk • f-fe reached near the well situated at AAohayeer Chowk and saw that lot of persons were standing there nnd the accused was sitting there. The child of the accusedwas dead ond on enquiry the accused was weeping. He 9ave the information to the Potice. It is correct to say that -riie well in which the deceased fell down is at the level of-the Idnd caid there was no pdrapet wall around the well and it is also cbrrect that there is no light there and fhe well is adjacent to the road. PW-7 Ldxman has said that on the fateful doy when he was going to the shop at around 8.30in the night when he reached near the Lethara well the voice of 'save save' was coming from the well. He went t6 the house of one Kanhaiya and thereby •rtie people of the yicinity collected there and the accusedand tier daughter were taken out of the well and on enquiry the accused informed that you peopleare not giving water that is why she jumped into the well. In cross examination, he has said that it is correct that the accused behaved like a mad person. It is also correct that the well is on the levet of the lond and there is no paropetwall around the well. Atthat time there was ddrkness. PW-8 Upenda Diwcn has also said -rtiat after hearing the scream he reached the site. On enquiry from the villagers the accused said that she fell in the well. The mental condition of the accused is not wetl. PW-9 Ramddhar hassaid thatdfterhearing the nbise he reached the site. The villdgers were also present there. The IpBQjile-fook out the decteased after tying her from a rope. The accused J^slweeping and by that time she did not disclose ouiything and thereafter he came back.' PW-10 Ajit Kumar ftao has also said -that on the fat^JIIJay in the night he vwsgoing for stroll'towards the pond. On the wdygjyepe is Lathera locaiity ond he saw that the villagers took out the accused and her daughter from the well. The accused did not «?. disclose onything in his presence. s, (8) Inviewoftheaboveevidence,thereisnoeyewitnessor direct evidence who saw the accused/appellant jumping into the well. PW-10 Ajit Kumar Rao has said that onenquiry the accused has nptsaid anything. PW-9 Ramadhar has also said that the accused.clidnot soy anything in his presence. Whe-reas PW-8 has said that on enquiry •t+ie accused/appellant informed that she fell in the well. PW-6 Kotwar &ev Singh Chouhon has aiso said that on enquiry the accused was weeping and she had not said anything. The only witness Laxman has said that on enquiry the accused/nppellont informed that you people did not yve. the water, therefore, she jumped into the well. Butthestatement of this witness has not beensupported by any of the person who wasalso present on the scene of occurrence. .He has said that the accused was weeping and she said nothing. Therefore, virtualiy there is no evidence in this case, which shows that the accused jumped into the well to commit suicide and with intention to mur-der the deceased. It has also come on record that almost every witness has said that the well is adjacent to the road and there is no parapet wail around the weil eind the time of theincident was 8.30 in the night and there was darkness at that time and almost every witness has soid that the dccused is a lady of weak mind and earned her livelihood by be99ing. Therefore, the explanation offered by thsaccused that due to darkness she feil down in the well clong with h&r belongings appears to be correct. Therefore, the finding of the learned trial Court that the accused jumpedinto the wel! with intention to murder her own daughter and to commit suicide is based on no iegal evidonce and there is no convmcing evidence to maintain the finding of the triat Court. Therefore, the Judgment of the trial Court cannot be sustained whichis liable to be setaside. <j. (9) Iri the result,.th6 appealof the accused/appellait is allowed. The conviction ondsentence awarded to the accused appellont by the learned trial Court are set aside. The accused oppellant is acquitted of the charges under Sections 302 and 309 df the Indian Penal Code and she be set at liberty forthwith if not required in any other case. Sd/- ChiefJustice Sd/- L.G.Bhadoo Judge —J .:! III