HIGH COURT OF CHHATTISGARH. BILASPUR CQRAM: Hon'ble ShriRaieev Gupta. C.J. & Hon'ble Shri Sunil Kumar Sinha, J. Criminal Appeal No. 768 of 1993 Bi: El(; Narmdabai Vs. The State of Madhya Pradesh (Now State of Chhattisgarh) IN: K i i^ i 111 i ! K 1i- ffill JUDGMENT For consideration Sd/- Sunil Kumar Sinha Judge HON'BLE SHRI JUSTICE RAJEEV GUPTA J cx^^T'^-^ <GJ Sd/- Chief Justice ^r7-/D37201T- PostforJudgment : ^<5'/03/2011 Sd/- Judge 2.^ /03/2011 \ Xi•^ RAJESH KUMAR SONTEKE Digitally signed by RAJESH KUMAR SONTEKE Date: 2025.02.07 12:29:04 +0530 W-:t'.\fM^»ky,fB^IE-^^.'. HIGH COURT OF CHHATTISGARH AT BILASPUR D.B.: HON'BLE SHRI RAJEEV GUPTA. C.J. & HON'BLE SHRI SUNIL KUMAR SINHA. J. APPELLANT CRIMINAL APPEAL N0.768 of 1993 Narmdabai, wife of Pawan Kumar Sahu, aged 27 years, resident of village Simariya, P.S. Nandini Nagar, District Durg RESPONDENT Versus The State of M.P. (Now State of Chhattisgarh) through the D.M. Durg CRIMINAL APPEAL UNDER SECTION 374 OF THE CODE OF CRIMINAL PROCEDURE AppearanGe: Mr. Ravindra Agarwal, Counsel for the appellant. Mr. Kishore Bhaduri, Additional Advocate General for the State. JUDGMENT (23.03.2011) Following judgment of the Court was delivered by Sunil Kumar Sinha. J. (1) This appeal is directed against the judgment dated 15 of July 1993 passed in S.T. No.97/91 by the 5 Additional Sessions Judge, Durg. By the impugned judgment, the appellant has been convicted under Sections 302, 307 & 309 I.P.C. and sentenced to undergo imprisonment forlife, R.l. for 5 years and S.l. for 1 month with a further direction to run the sentences concurrently. (2) The facts, briefly stated, are as under: In theintervening nightof 31st of March and 1st ofApril 1990, the appellant threw her 3 children into the well and she also jumped into the well. Two sons namely Rakesh @ Golu and Janak lost their lives and daughter namely Ku.Anik (PW-5) was saved. In fact, % i ''k.s CRIMINAL APPEAL N0.768 of 1993 c^ in the morning, when Bhaktu @ Kothari (PW-2) was passing near the well, he heard some noise and found that the above persons were inside the well. He called Lachhi Ram (PW-3). Many other villagers including Sukhram (PW-4), Dukalha (PW-7), Sudhir Rai Tripathi (PW-8) gathered there and took out the appellant and Ku.Anik (PW-5)and they also took out the dead bodies of the two deceased children. The incident was reported to the concerned Police Station. The Investigating Officer reached to the place of occurrence, gave notice to the Panchas and prepared inquest (Ex.- P/1 & Ex.P/2) on the dead bodies of the deceased. The dead bodies of the deceased were sent for their postmortem to District Hospital, Durg, where, their postmortem examination was conducted by Dr. K.K. Mishra (PW-12), who opined that the causes of death were asphyxia due to drowning. The postmortem reports are Ex.P/6 and Ex.P/7. The appellant and her daughter Ku.Anik (PW-5) were also sent for their medical examination. No injuries were found on their bodies. Their MLC repori:s are Ex.P/4 & Ex.P/5. The proseeution came with the case that the appellant was not happy in her marital life, therefore, she threw her 3 children into the well and she also jumped into the well. Two sons -Rakesh @ Golu and Janak had died and daughter- KuAnik (PW-5) was saved. The case of the prosecution was mainly based on the sole testimony of Ku.Anik (PW-5). The learned Sessions Judge relied on the testimony of KuAnik (PW-5) and held that it was established that firstly, the appellant threw her 3 children into the well and thereafter, she also jumped into the well. (3) Mr. Ravindra Agarwal, learned counsel appearing on behalf of the appellant, argued thatKu.Anik (PW-5) was a child witness; her evidence was not reliable; therefore, the conviction of the appellant on the sole testimony of Ku.Anik (PW-5) was notjustified. (4) On the other hand, Mr. Kishore Bhaduri, Additionai Advocate General appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court. | ^.a.aste^ ":'%- •y%. -^ / u^'^./ '•'it.J: ]!8:..<-{;:;1' »KK'SC( CRIM!NAL APPEAL N0.768 of 1993 .s^KSh rai (5) We have heard learned counsel for the parties at length and have also perused the records of the Sessions Case. (6) In Bharvad Bhikha Valu & Others -Vs- The State of Guiarat. AIR 1971 SC 1064, the Supreme Court held that even if there are no infirmities in the evidence of a child witness, it would be prudent to seek corroboration of such evidence in view of the tender aged of child witness. (7) In Dattu Ramrao Sakhare & Others -Vs- State of Maharashtra. (1997) 5 SCC 341, the Supreme Court said that the court must see that the child witness is reliable and the demeanour of the witness is like any other competent witness and there is no likelihood of being tutored. There is no rule or practice that in every case the evidence of such a witness be corroborated before a conviction can be allowed to stand, but as a rule of prudence the court always finds it desirable to have the corroboration to such evidence from other dependable evidence on record. (8) In Panchhi and Others -Vs- State of U.P.. AIR 1998 SC 2726, the Supreme Court held that the law is that evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell them and thus a child witness is an easy prey to tutoring. (9) Referring to various other judgments, the Supreme Court held in the matter of Ratansinh Dalsukhbhai Navak -Vs- State of Guiarat ^2004) 1 SCC 64 that conviction on the basis of child witness is permissible if such witness is found competent to testify and the court after careful scrutiny of its evidence is convinced about the quality and reliability of the same. •^. 1-:;. :-. ,Jf ^l I?)] I'i'^ CRIMINAL APPEAL N0.768 of 1993 @ (10) Therefore, it is well settled that the evidence of a child witness has to be evaluated with great care and caution and greater circumspection and its credibility has to be examined in light of the facts and circumstances of each case and if it is found credible in all respects it can be relied on for conviction in a criminal case. (11) Now we shall examine the credibility of the evidence of Ku.Anik (PW-5). She was aged about 8-9 years on the date of the incident. She is the daughter of the appellant. She deposed that the appellant had thrown her two brothers in the well. They have died. She was also thrown in the well by the appellant.She was cross-examined by the defence, but nothing material could be elicited in her cross-examination, on which, her testimony could be discarded. On the contrary, in the last sentence of her cross-examination, she pointed towards the appellant and deposed that the appellant had thrown them in the well. She denied the suggestions that her grandfather and grandmother had thrown them in the well. According to the prosecution, the dead bodies of two children were found in the well and the appellant and Ku. Anik (PW-5) were also found in the well. This is clear from the versions of Bhakta @ Kotari (PW-2), Lachhi Ram (PW-3), Sukhram (PW-4) and Sudhir Rai Tripathi (PW-8). Sudhir Rai Tripathi (PW-8) was a school teacher. He was the person who took out the dead bodies, the appellant and Ku. Anik (PW-5) from the well.In fact, he went into the well and rescued the appellant and Ku. Anik (PW- 5), whowere alive, and then, everybody (2 deceased persons and 2 alive persons) were taken out from the well. The evidence of above witnesses corroborates the evidence of Ku. Anik (PW-5) to the extent that they were in the well and were taken out by the villagers in the morning. It does not appear that Ku. Anik is telling lie. The contents of the map (Ex.R/14) ph. ^ ^ 1 i) (.ll.L CRIMINAL APPEAL N0.768 of 1993 4 would show that the well was at a distance of 841 ft. from the house of the appellant. The well was of the depth of 37 ft., out of which, 1 8 ft. was filled with water and 19 ft. was the distance of the ground from the level of water. It was of the diameter of 5 ft. If the appellant had thrown her 3 children in such well, certainly, her intention was to commit murder of her children. (12) Mr. Ravindra Agarwal has argued that it may be a case of accident. We are unable to accept the said argument of Mr. Agarwal. The incident took place at late night. There is nothing on record to show as to why the appellant along with her 3 small children will go to the well at a distance of 841ft. in the night. Ku. Anik (PW-5) clearly deposed that the appellant had thrown her two brothers and she was also thrown by the appellant in the well. In light of the above evidence of Ku. Anik (PW-5) and further in light of other facts and circumstances of the case, a possibility of accident is fully ruled out. (13) For the foregoing reasons, we do not find any substance in the appeal. (14) The appeal is liable to dismissed and is accordingly dismissed. Sd/- Chief Jusdce Sd/- Sunil Kumar Sinha Judge ishyna