1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. JUDGMENT Mst. Madi vs. The State of Raj. D.B. Criminal Jail Appeal No. 345/1990 against the judgment dated 17.3.1990 passed by the learned Sessions Judge Banswara in Sessions Case No.61/88. Date of Judgment : 27th Sept. 2010 PRESENT HON'BLE MR. PRAKASH TATIA,J. HON'BLE MR. KAILASH CHANDRA JOSHI,J. Mr. R.K. Charan for the appellant. Mr. K.R. Bishnoi, Public Prosecutor for the State. BY THE COURT: (Per Hon'ble Tatia,J.) This JailAppeal has been preferred by Mst. Madi who has been convicted by the learned Sessions Judge Banswara in Sessions Case No.61/88 vide judgment dated 17.3.1990 for offence punishable under Section 302 and 309, IPC and she has been sentenced to life imprisonment with fine of Rs.50/- under Section 302, IPC and in default of payment of fine, to undergo 15 days' simple imprisonment and she has been awarded six month's simple imprisonment under Section 309 IPC. As per the prosecution case, one Vala s/o Mogji Garasia lodged oral report on 12.6.1088 at 8.30 a.m. in 2 Police Station Sallopat that in the early morning at 4 a.m., hearing some barking of dogs, he went towards nearby well where he found that his nephew Raoji's wife Mst. Madi (accused) with her daughter of the age of 2 years only were lying in the well, as accused Madi to commit suicide and to kill her daughter, jumped in the well. He immediately shouted for help, upon which Hurteng, Khatu, Havji, Mana and Raoji came running towards the well. Mana and Hurteng went in the well to bring the accused and her daughter out from the well and brought them out. In this incident, the accused Madi could be saved but her daughter died. On this, formal FIR (Ex.P.1) was registered under Sections 302 and 309, IPC. The victim was taken to the hospital and was given treatment, after which she was arrested. During investigation, statements of seven witnesses including evidence of two doctors, PW-5 Dr. Jagdish Prasad and PW-6 Dr. Rajendra Adhikari were recorded. The site was inspected and the site inspection report was prepared. The post-mortem report was obtained. The charges were framed against the appellant-accused who denied the charges and sought trial. During trial, witnesses PW-1 Gajiya, PW- Havji, PW-3 Vala, PW-4 Mana, PW-5 Dr. Jagdish Prasad, PW-6 Dr. Rajendra Adhikari and PW-7 Nawab Khan were examined by the prosecution. The prosecution also got exhibited FIR (Ex.P.1), site inspection report (Ex.P.2), memo for the body 3 of deceased (Ex.P.3), the post-mortem report (Ex.P.4) and referral slip (Ex.P.5). The accused-appellant was examined under Section 313,Cr.P.C. In her statement under Section 313, Cr.P.C., the appellant accused stated that her daughter of the age of 1-1/2 – 2 years died as she fell in the well when she was went to ease in the morning. She also stated that she tried to make effort to save her daughter and in that effort, she also fell in the well from where she was taken out by the witnesses. After trial, the trial court reached to the conclusion that the accused-appellant, to kill herself and to cause death of her daughter, jumped into the well and rejected the appellant's defence that she with her daughter went to place for ease and she left her daughter near the well from where she fell down in the well and also rejected that the appellant jumped into the well or fell in the well while making efforts to save her daughter and relied upon the circumstantial evidence that it was not possible that appellant's daughter may have fallen down into the well and, therefore, there was no occasion for the appellant to jump into the well to save her daughter. The learned counsel for the appellant vehemently submitted that the charges against the accused have not been proved by the prosecution. According to the learned counsel for the appellant even the complainant Vala(PW-3) who lodged the FIR, in his statement, clearly admitted that 4 at the time of incident, neither he nor any other person was present on the spot and when the appellant was brought out from the well, she immediately stated that her daughter fell into the well and while making effort to save her daughter, she also fell in the well. According to the learned counsel for the appellant, the trial court by misreading the statement of the appellant recorded under Section 313, Cr.P.C., convicted the appellant. The learned counsel for the appellant also submitted that not only it is a case of no evidence but it is a case where the prosecution witnesses themselves stated that the appellant went to ease, as is clear from the further evidence of PW-2, who corroborated the evidence of PW-3 Vala. It is also submitted that the motive of the appellant has not been proved by the prosecution to justify for taking of action of killing of her daughter by herself and for her attempt to commit suicide. The only circumstance given by the trial court in its judgment is that there was a wall encircling the well, therefore, the small baby could not have fallen in the well but that was not the case of the prosecution and even in site inspection report,it is not mentioned that the well had wall encircling the entire well. The learned Public Prosecutor submitted that though there is no eye-witness to the incident but the circumstances clearly proved the case of commission of offence by the appellant beyond any doubt and again relied 5 upon the circumstance that a small girl could not have fallen in the well nor the appellant could have jumped into the well to save her daughter nor she could have fallen in the well while making effort to bring out her daughter from the well. We considered the submissions of the learned counsel for the appellant as well as the learned Public Prosecutor and perused the record. This fact has not been disputed that PW-3 Vala gave oral report of the incident, upon which FIR (Ex.P.1) was registered under Sections 302 and 309, IPC. In FIR, it has been stated that at about 4 a.m. of 12.6.1988, Vala heard the barking of dogs from the side of the well and he went towards the well and found that the appellant and her daughter were in the well. He shouted, upon which witnesses Hurteng, Khatu, Havji, Mana and Raoji came to the place of incident and found that the appellant and her daughter were in the well. PW-3 Vala, in his statement in court, proved the FIR(Ex.P.1) and supported the prosecution but admitted that he reached there after happening of the incident. It is not in dispute that the appellant and her daughter both were in the well and they were brought out from the well by Hurteng and Mana. The appellant was brought alive out from the well and she was taken to the hospital. PW-6 Dr. Rajendra Adhikari examined the appellant on 12.6.1988 at C.A.S. Referral 6 Hospital, Bagidora where he was posted, and at that time, the appellant was in semi-conscious condition. The appellant was given treatment and she came in senses on 13.6.1988 and she gave her statement to the police officer. From 14.6.1988 she started behaving abnormal and even refused to take meals. On 15.6.1988 she was referred to further higher medical centre, i.e. to Mahatma Gandhi Hospital, Banswara. It is not in dispute that appellant's daughter Kavita's post-mortem was conducted on spot by witness PW-5 Dr. Jagdish Prasad, who was at relevant time, posted in the Government Hospital, Sallopat as Medical Officer. The daughter of the appellant died due to drowning and consequential suffocation. The post-mortem report was proved by PW-5 Dr. Jagdish Prasad as Ex.P.5. From above facts, it is fully proved and also not disputed that the appellant and her daughter both were found in the well and were taken out from well by other persons named above. The appellant was brought alive and appellant's daughter was brought dead from the well. The core question is whether the appellant, with intention to kill herself and to kill her daughter, jumped into the well or not. For this, so far as direct evidence is concerned, there is no evidence. The prosecution witnesses PW-2 Havji who reached on spot after PW-3 Vala (complainant), both in their cross-examination stated that when complainant came in sense, she told them that she 7 went to take water from the well and at the same time she went to ease and since she left her daughter near the well where some dogs started barking, which frightened her daughter Kavita and said Kavita started running and fell in the well. She also told both the witnesses that when she tried to save her daughter, she also fell in the well. Both these two witnesses of the prosecution are not the hostile witnesses. The third named witness is PW-4 Mana reached on spot hearing shouting of PW-3 Vala. This witness is only supported the prosecution case to the extent that hearing barking of dogs he along with other persons went towards well and found the appellant and her daughter in the well and he and Hurteng brought the appellant out from the well. He also stated in examination-in-chief that at that time the appellant was not in position to speak. Therefore, the appellant narrated the entire story to PW-2 Havji and PW-3 Vala only when she came in sense. As we have already noticed, the case of the prosecution witnesses is also that they were not witness of the incident, therefore, except statement of appellant given after the incident is the evidence of whatever nature it may be but there is no evidence that the appellant to kill herself and her daughter jumped in the well. It is true that the Investigating Officer PW-7 Nawab Khan, in his statement in court stated that the well had boundary wall of height 2 ft., but admittedly he has not 8 recorded this fact in the site report of the well (Ex.P.2) and so has been admitted by him in his cross-examination and the trial court merely on the basis of statement of PW-7-the Investigating Officer, held that it was not possible that a small girl could have fallen in the well as there was boundary wall encircling the well. The reason given by the trial court cannot be justified for holding the appellant for taking such step as presumed by the trial court nor it can be held that there was a boundary wall encircling the well and that too living no scope for having any space for falling of a small girl of the age of 2 years only. In the site report (Ex.P.2) it is also mentioned that there was not only one but there were three water drawing giradis with support of six pillars and normally at such place, the space is left for taking out water from well so that the persons may not have to put more labour for taking out water from well. Therefore, the only circumstance given by the trial court for convicting the appellant is not sufficient circumstance for holding that the appellant with intention to kill her daughter, jumped into the well. Further relevant fact is that the appellant's husband was not examined by the prosecution so as to bring on record any circumstances under which the appellant could have taken a decision to commit suicide and kill her daughter of age of 2 years. At this juncture it will be relevant to mention here that PW-4 Mana stated that the appellant had eight daughters 9 and two of them were of marriageable age. The appellant's husband, who was present at the time of incident with the complainant Vala, as admitted by PW-3 Vala, has not been produced by the prosecution to prove that there was any problem of marriage of his daughter leading to frustration in the mind of the appellant compelling her to take decision to kill her daughter of only 2 years whose marriage was not the issue. Therefore, there is mere possibility of falling of appellant's daughter in the well and in accident falling of appellant in well. Therefore, this appeal deserves to be allowed and hence allowed. The judgment and order of the trial court dated 17.3.1990 is set aside. The appellant is acquitted for the offence under Sections 302 and 309, IPC. She is already on bail. She need not to surrender and her bail bonds are cancelled. ( KAILASH CHANDRA JOSHI),J. ( PRAKASH TATIA),J. mlt.