1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. JUDGMENT Smt.Lali vs. The State of Rajasthan. D.B.Cri. Appeal No.532/2002 Under Section 374 (2) Cr.P.C. against the judgment dated 18.06.02 passed by the Addl. Sessions Judge (Fast Track), Bikaner in Sessions Case No.151/2001. ....... Date of Order: 07th August, 2007. PRESENT HON'BLE MR.JUSTICE BHAGWATI PRASAD HON'BLE MR.JUSTICE MUNISHWAR NATH BHANDARI Mr.D.K.Gaur for the appellant. Mr.JPS.Choudhary, Public Prosecutor. BY THE COURT :(PER HON.MR.BHAGWATI PRASAD,J.)- The present appeal has been filed by accused appellant Lali, against the decision of the Addl. Sessions Judge , Bikaner, in Sessions Case No.151/2001 dated 18.06.02. On 29.10.00, PW1 Dungar Ram went to Police Station, 2 Gajner, Bikaner and gave an oral report that he, Omkar Ram and Chhailu Ram are three brothers, they are living in separate huts. On 27.10.00 he and Chhailuram went on work. His wife, and wife of Omkar Ram went to the nearby habitats for wishing Deepawli. In the dhani of village, Chhailuram's wife, accused Lali , his two year old son, Lakshman, ten year old daughter Bhuri and four year old daughter of Omkar Ram, were there. On 28.10.00 at about 03.00 PM Bhuri came to him at his field and told him that on 27.10.00 at about 03.00 PM Lali took Lakshman, aged two years, and Soni aged four years, along with her and she went saying that she is going to attend the call of nature. When she returned Lakshman and Soni were not with her. Then she enquired Lali about the children, she did not answer. Then Lali took Puran, the two year old son of Omkar Ram. After about an hour, his wife Premi and Omkar Ram'.s wife Karni came . They were informed of this. The wives tried to search out Lali. She was found near the field of Achal Singh Rajput. She was carrying Puran in her lap. They brought back Puran from her and Lali went ahead. Lakshman and Soni were searched for, but they were not found . A doubt was expressed in the first information that either Lali has done away with Lakshman and Soni or is concealing them somewhere. On such oral report ExP/1, first information report, was recorded and investigation conducted. 3 During the investigation it was found that Soni and Lakshman have been eliminated by Lali, by drowning, in the canal. After investigation, a charge sheet was filed against the accused Lali under section 302, 363, 364 and 342 IPC in the court of Judicial Magistrate , Kolayat and he made over the case to Sessions Court , Bikaner from where it was transferred to the trial court. The trial court framed charges against Lali under section 302, 363, 364 and 342 IPC. She denied the charges and claimed trial. At the trial prosecution examined ten witnesses. Nine documents were exhibited. Lali was examined under Section 313 Cr.P.C. Her stand was that she has been falsely implicated because she had lodged a case under section 498A, against her father- in- law and elder brother of her husband. No defence witness was produced. The trial court, after considering the case of the prosecution, convicted the accused appellant under Section 302 and 364 IPC. Under section 302 IPC she has been sentenced to life imprisonment and a fine of Rs. 2,000/- and under section 364 IPC to ten years R.I. And a fine of Rs.1,000/-. She was, however, been acquitted of the charge under section 342 IPC. 4 The trial court , for convicting the accused appellant, relied on the testimony of PW/2 Bhuri , who had seen the children with the accused last, PW/9 Mangilal, who had seen Lali drowning the children in the canal, PW/4 Asuramji and PW/8 Pushpa, before whom Lali made the extra judicial confession. So there was direct evidence against Lali, circumstantial evidence having last seen, and also extra judicial confession. The learned counsel for the appellant , assailing the findings of the trial court, said that the evidence of last seen is based on the basis of PW/2 Bhuri a child witness and, therefore, it is not a solid evidence against the accused. Child witnesses are prompt to tutoring and they are capable of saying what they are tutored to say. Further the argument of the learned counsel was that children live in a make- believe world, and in that light the case of the prosecution cannot be said to have been based on a solid piece of evidence. According to the learned counsel, PW/9 Mangilal is also a child witness who is alleged to have seen drowning Lali the children in the canal. This witness is also a child witness and, therefore, the criticism levelled against Bhuri has been repeated for this witness as well. 5 The learned counsel has assailed the testimony of PW/4 Asuram and PW/8 Pushpa, alleging inter-alia that these witnesses have not spoken the exact words spoken by the accused. The version narrated by each of the witnesses is substantially different and not the same. The exact words have not been spoken. The extra judicial confession cannot be relied upon to have been made before these witnesses because of the nature of evidence and also by the fact that it is a weak type of evidence and, therefore, the same cannot be relied upon. The learned counsel further submitted that the statements of these two witnesses have been recorded late and, therefore no implicit reliance can be placed on their statement. The learned counsel has further submitted that FIR is a belated document. No independent witness has been examined. All the witnesses belonged to the family and, therefore, the case has been wrongly made out against the accused person by interested witnesses. Per contra, the learned Public Prosecutor, submitted that it is a case where the lady was a child- less lady. She bore grudge against the children, as her husband's brothers had complete family and she was child- less. In that background, when she has been seen 6 going with the children, a family member alone will normally see the event of this fact. Expecting some body else to come and give evidence is not a normal feature which can be insisted upon. The family lives on an isolated habitat. Accused could be last seen with the deceased only by persons living there. It has so been deposed by one of the resident Bhuri, PW/2. She has been seen by the witness PW/9 Managilal , drowning the children and she has confessed to have eliminated the children. These pieces of evidence are sufficient to establish a case against the accused and in that background, the trial court has rightly convicted the accused appellant. We have heard learned counsel and have perused the record and have given our thoughtful consideration to the case as has been made by the prosecution. PW/2 Bhuri is a child witness. But then her testimony was a natural testimony that accused , wife of her uncle, had taken the children, both of them being of tender- aged, with her. Nobody would doubt a lady of the family taking the children with her. When she came back, the children were not with her. When asked about the whereabouts of the children, she gave no explanation. Her remaining silent about the whereabouts of the children is a factor 7 which goes a long way . It establish the fact that tender aged children of the family were last seen with her and, therefore, she was required to answer the question and explain where were they? Having failed to explain, a strong presumption arises against her and, therefore, the evidence of PW/2 Bhuri establishes the fact and her conviction under section 364 IPC has therefore, been rightly recorded by the trial court because she had removed the children from the home i.e. from the custody of the parents, for a purpose which was not bonafide and in that view of the matter, the testimony of PW/2 Bhuri has rightly been relied on by the trail court. Then the case comes wherein she, in the night, had gone to the family of a Meghwal from where her husband's sister and her husband escorted her to their house . She had left her own house and if in these circumstances, if she had made an extra judicial confession to the person who gave her shelter, while she was there during the night, it cannot be said that it was an impossible and improbable conduct. In that view of the matter , if the children had been taken by her and on return, without explaining she had left the house, she had gone to the house of an unknown Meghwal from where her sister in law and her husband had escorted her , and therefore, it cannot be said that it was not a situation where extra 8 judicial confession could not be made by her. Further the extra judicial confession stands corroborated by the fact that she was last seen with the children, thereafter the children had not been seen. Above all, the testimony of PW/9 Mangilal , though a child witness, deposing that he had seen her drowning the children in a canal, if read in consonance with the testimony of extra judicial confession and seen witnesses, it establishes a case against the accused. In that background, if the trial court has relied upon the testimony and has convicted the accused under section 302 IPC, we see no reason to interfere with the conviction and sentence awarded against her. We feel that there is overwhelming evidence against accused appellant wherein she has done an utmost cruelty against the tender aged children who were defenseless in her custody, for some motiveless malignity. May be her failure to deliver the child has been translated in elimination of two tender aged children. Thus, we hold that she is guilty of the charges held proved against her, We see no reason to interfere with the findings of the trial court. In the result, her appeal fails and is , hereby rejected. 9 She is behind the bars, she should serve out the sentence. (MUNISHWAR NATH BHANDARI), J. (BHAGWATI PRASAD), J. L.George