Sita Devi vs State Of U.P.
2018 Latest Caselaw 284 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 41
 

 
Case :- JAIL APPEAL No. - 4267 of 2013
 

 
Appellant :- Sita Devi
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- From Jail
 
Counsel for Respondent :- A.G.A.
 

 

 
Hon'ble Rajesh Dayal Khare, J.

Hon'ble Mrs. Vijay Lakshmi,J.

This jail appeal has been directed against the judgment and order dated 31.7.2013 passed by the learned Sessions Judge, Varanasi in S.T. No. 720 of 2010 (State Vs. Sita Devi ) arising out of Crime No. 230 of 2010 under Sections 302, 201 and 504 I.P.C., Police Station Maduadih, district Varanasi whereby the learned Sessions Judge has convicted the accused-appellant Sita Devi under Sections 302 and 201 I.P.C. and has sentenced her with life imprisonment and fine of Rs. 10,000/- under Section 302 I.P.C. and 3 years R.I. with fine of Rs. 2000/- under Section 201 I.P.C.

Heard Sri Ashok Kumar Yadav, learned Amicus Curiae for the appellant and learned A.G.A. for the State. Perused the record.

The prosecution story, in brief, is that a first information report, scribed by one Surendra Singh Yadav, was lodged by the informant Smt. Phullan Devi at P.S. Maduadih mentioning therein that she is resident of village Nathupur, P.S. Manduadih, district Varanasi. On 3.10.2010 at about 5.00 P.M. in the evening her 2 years old son Akash had eased himself and she had gone to throw the latrine on the railway line. When she returned she did not find her child. She searched for him and called for help. It is further mentioned in the F.I.R. that in the morning on the same day the accused-appellant Sita Devi, who is her Nanad, had quarrelled with her and she had threatened her that she would throw away her child into the well and she would not be able to see his face again and she (Sita Devi) did accordingly by throwing away the child into the well. The child was taken out from the well with the help of villagers who rushed to Kabir Chaura Hospital, Varanasi with him where the doctors declared him dead. In the F.I.R. prayer was made by the first informant to take legal action against accused Sita Devi.

On the basis of the first information report (Ex. Ka. 1), the check report (Ex. Ka. 11) was prepared and relevant entries were made in the General Diary, the carbon copy whereof is Ext. Ka. 12. The police prepared the inquest report (Ext. Ka. 4), the Photo nash (Ex. Ka. 5) and police Form No. 13 (Ex. Ka. 6). The dead body of the child was sent for autopsy. The autopsy report is Ext. Ka. 2 on the record. The I.O. investigated the spot and prepared the site plan (Ex. Ka. 3) and after completion of the investigation submitted the chargesheet (Ex. Ka. 10) against accused-appellant Sita Devi for the offences mentioned above.

The case being triable by the court of session, it was committed to the sessions court where charges were framed against the appellant under Sections 302, 201 and 504 I.P.C. to which she denied and claimed for trial.

The prosecution in order to prove its case, produced six witnesses in all. P.W. 1 is the first informant Phullan Devi, P.W. 2 and P.W. 3 are Savitri Devi and Sohan Lal Patel, who are the neighbors, P.W. 4 is Dr. Abhishek Rai, who has conducted the post-mortem of the deceased child. P.W. 5 is S.I. Sagir Ahmad, Station Officer of P.S. Rohania, who is the investigating officer and P.W. 6 is Head Constable Umesh Rai who has prepared the check report in this case and has made relevant entries in the General Diary after registering the case.

After conclusion of the prosecution evidence, the statement of appellant under Section 313 Cr.P.C. was recorded wherein she denied the truthfulness of the prosecution case, however she admitted the fact that she has given birth of a female child without marriage. She has stated that she has been falsely implicated in this case due to enmity. In defence she has examined one Lalita Devi as D.W. 1.

Before proceeding for analysis of the evidence adduced by the parties, a careful glance on the evidence led by both the parties is necessary.

P.W. 1 Phullan Devi has stated that accused Sita Devi is her Nanad. The incident took place on 3.10.2010 at about 5.00 P.M. At the time of incident her son Akash was aged about 2½ years. She has also one female child aged about 5 years named Anjani. At the time of incident her daughter was also present in the house. On the date of incident in the morning, the accused Sita Devi had quarrelled with her using abusive language and had asked her to go away otherwise she would not be able to see the face of her son and she will throw her son into the well. At about 5.00 P.M. her son eased and she had gone to railway line to throw it. When she returned after throwing the latrine, her daughter Anjani told her that Sita Devi has dropped the child into the well. This witness did not find her son at the place where she had left him. When she went near the well, she saw that her son was floating on the water. She cried for help and with the help of villagers, her son was taken out. They took the child to Kabir Chaura Hospital where the doctor declared him dead. At that time the accused Sita Devi was shouting loudly that police, Daroga and court cannot do nothing against her. P.W. 1 has further stated that she got scribed the F.I.R. by one Surendra Singh Yadav, Gram Pradhan. It was readover to her and after hearing its contents, she put her thumb impression on it. This witness has identified her thumb impression on the written report (Ex. Ka. 1).

P.W. 2 Savitri Devi is the neighbor of the first informant. She has stated that on the date of incident at about 5.00 P.M. she was sitting at her door when she saw that Sita Devi, after throwing something into the well situated in the lane in front of her house, returned back hurriedly. Just after sometime, Phullan Devi came there searching for her son. She (P.W. 2) told her that just before few minutes, Sita Devi, after throwing something into the well, had returned back. By the time some villagers had also reached there. All of them took out the son of Phullan Devi from the well. She has further stated that during the quarrel between Phullan and Sita Devi, Sita Devi had threatened Phoolmani that she would not see the face of her child and had given her 21 days for this purpose. In the meantime she threw the child into the well.

P.W. 3 Sohal Lal Patel is the resident of the same village. He has stated that Sita Devi and Phullan Devi both are Nanad and Bhabhi in relation. Sita Devi had given birth to a female child without marriage. She was inclined to perform marriage with brother of Phullan who was living wth them in the same house and she was always asking Phullan to solemnize marriage between them but Phullan had denied. He has further stated that Sita Devi is the step sister of husband of Phullan Devi and there is also property dispute between them. P.W. 3 has stated that his house is situated adjacent to the well towards eastern side. He heard the sound of throwing something into the well and when he went near the well, he saw something bubbling. He also saw Sita Devi going towards north in the field. This witness has alleged that Sita Devi threw the son of the informant into the well. He has also stated that about 15 days prior to the incident, Sita Devi had thrown the deceased child in a pit of latrine but fortunately he was saved at that time. He has further stated that Surendra Patel, Rajbali Patel and Guddu Patel were also present at that time.

Apart from the aforesaid three witnesses, no other witness of fact has been produced by the prosecution.

For a correct assessment of the truthfulness and reliability of the statements of the aforesaid witnesses, a careful scrutiny of their cross-examination is necessary.

During the course of argument, learned Amicus Curiae pointing out several contradictions and omissions in the statements of witnesses which had occurred during their cross examination. Learned Amcus Curiae has contended that in fact no one has seen the accused Sita Devi throwing the child into the well which is clearly evident from a careful perusal of the statements of witnesses. In fact it was an accidental death as the child slipped into the well while he was playing.

The attention of this Court has been drawn towards the contradictions occurring in the statement of P.W. 1 and P.W. 2. P.W. 1 has stated that her 5 years old daughter Anjani had informed her about the incident. The relevant lines of her statement is as follows :-

"मेरे लड़की का नाम अंजनी है उसकी उम्र 5 वर्ष है। अंजनी ने ही मुझे बताया कि सीता ने आकाश को कुँएँ में फेंका है। यह बात सही है कि अंजनी के बताने पर ही मुझे जानकारी हुई कि सीता ने मेरे लड़के आकाश को कुँएँ में फेका है। मैं सीतादेवी को कुँएँ में लड़का फेंकते नही देखी थी।"

To the contrary P.W. 2 has stated that she had told the informant that Sita Devi had thrown something into the well. During cross-examination P.W. 2 has stated that at the time of incident, the daughter of first informant namely Anjani had gone to Shiv Charya. She has even denied the specific suggestion given by learned defence counsel by stating as under :-

'यह कहना गलत है कि घटना के समय अंजनी लड़की शिव p;kZZ में न गई हो।"

Learned counsel for the appellant has submitted that this is a material contradiction which totally belies the statement of P.W. 1 who has stated that it was Anjani who told her about the incident.

Anjani, though a child witness, was a very important witness in this case being an eye witness, who could have been produced by the prosecution in support of its case but for the reasons best known to it, she has not been examined.

P.W. 2 has admitted the fact that she did not see the child going towards the well with Sita Devi. She had only heard the sound of something falling into the well. She had seen the child when he was taken out from the well. P.W. 2 has also stated that at the time of incident, the well was not covered by any boundary wall.

P.W. 3 too in his cross-examination has denied the presence of Anjani at the spot at the time of occurrence. He has categorically stated that he had not seen Anjani at the place of occurrence. He has further stated that when the boy was taken out from the well, he was at his house. He has further stated that he came to know that the boy was found inside the well after searching for a long time. The statement of P.W. 3 also suffers from material contradictions which is evident from the following lines of his statements. In his examination-in-chief he has stated as under :-

"सीता देवी जब फूलमनी के लड़के को कुँएँ में फेंकी तो मैं देखा था।"

Whereas during his cross-examination he has stated that :-

"जब फूलमनी हल्ला मचाई तब हम लोगों को पता चला कि लड़का गिरा है।"

These material contradictions make the testimony of P.W. 3 unreliable.

Learned amicus curiae has contended that the aforesaid statements of P.W. 2 and P.W. 3 clearly indicates that they had not seen the incident with their eyes and they had only heard the sound of something falling into the well. Under these circumstances the defence version appears to be more reliable that the son of first informant accidentally fell into the well while playing which is supported by the statement of D.W. 1 Lalti Devi who has stated as under :-

"लड़का जिस दिन मरा उसका तारीख याद नहीं है अक्टूबर का महीना था। जिस समय लड़का कूंएं में गिरा था उस समय फूला देवी बरतन मांजने कहीं गयीं थी। डी.एल. डब्लू कालोनी में बर्तन मांजने जाती है। उस समय लड़का दौड़ता व चलता फिरता था। लड़का और लड़के की बहन जिस समय कुंए पर खेल रहे थे तो मैंने लड़के की बहन अंजनी से कहा कि तुम बच्चे को लेकर कुंएं से हट जाओ नीचे खेलो नहीं तो कुए में गिर जाओगी। मैं और सीता दोनों अपने घर में बैठकर बातचीत कर रहे थे उसी बीच मैं और सीता घर के अन्दर खाना बनाने की जुगाड़ कर रही थी कि हल्ला-गुल्ला सुनाई दिया। तब हम लोग वहां पहुचे तो मुहल्ले के बहुत से लोग वहां इकट्ठा हो चुके थे। उस समय फूला देवी वहां नहीं थी। कुएँ से बच्चा बाहर आने के बाद फूला देवी वहां आयी थी। घटना के दूसरे दिन मैं अपने मायके चली गयी। कुछ दिन बाद मालूम हुआ कि फूला देवी ने सीता देवी के उपर झूठा इल्जाम बच्चा को कुआं में फेंकने का लगाया है।"

D.W. 1 has been cross-examined at length by the learned A.D.G.C. (Crl.) but nothing has been elicited to cast a shadow of doubt on her testimony. She has stated about the enmity between the first informant and the accused-appellant due to relation of Sita Devi with the brother of the first informant.

A perusal of the impugned judgment shows that the in paragraph 29, learned trial court has also expressed its view that both the children of the informant were playing near the well and it might be possible that unfortunately the deceased had fallen into the well. However, the learned trial court, on the ground that the statements of the prosecution witnesses find full corroboration with the medical evidence has held the appellant guilty.

The aforesaid finding arrived by learned trial court cannot be sustained and it is neither safe nor proper to hold the appellant guilty for such a heinous offence like murder only on the ground that the medical evidence support the prosecution case. The injuries sustained by the child may be a result of accident fall into the well. In absence of any eye witness, it cannot be ascertained as to whether the child was thrown away into the well or he accidentally slipped into it while playing as there was no boundary wall around the well.

It is a case of circumstantial evidence and the chain of circumstances is incomplete. The motive is an important link in the chain of circumstances, however, the prosecution has failed to prove it. There is no witness of any quarrel said to have taken place between the first informant and the appellant in the morning. There is no witness of the earlier incident of throwing the child into a pit of latrine. No complaint was made by the first informant of the earlier incident.

The daughter of informant Anjani was a material witness in this case because the first informant has categorically stated that she received the information from her daughter Anjani that Sita Devi had thrown her son into the well but Anjani has not been examined. P.W. 2 has stated that at the time of occurrence Anjani had gone to Shiv Charya. Admittedly the witnesses had reached on the spot after hearing the sound of falling something into the well and no one had seen Sita Devi throwing away the victim into the well.

It is to be noted that only 3 witnesses of fact have been examined by the prosecution in this case. There is no doubt that it is the quality and not the quantity of the witnesses is material. However, their testimony should be trustworthy and reliable.

In so far as the present case is concerned, the statements of witnesses suffer from several material contradictions, omissions and improvements making their testimony unworthy of credit.

The law regarding circumstantial evidence is well settled. Hon'ble Apex Court in Rohtash Kumar Vs. State of Haryana; (2013) 14 SCC 434 has reiterated the law as under :-

"The Court while convicting a person on the basis of the circumstantial evidence, must apply the following principles :-

(I) The prosecution must establish its case beyond reasonable doubt, and cannot derive any strength from the weaknesses in the defence put up by the accused.

(II) The circumstances on the basis of which the conclusion of guilt is to be drawn, must be fully established. The same must be a conclusive in nature, and must exclude all possible hypothesis except the one to be proved.

(III) Facts so established must be consistent with the hypothesis of the guilt of the accused, and the chain of evidence must be complete, so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused, and must further show that in all probability the said offence must have been recommitted by the accused."

In so far as the present case is concerned, we are of the firm view that the chain of circumstances is not so complete so as to point out only to the guilt of appellant and towards no hypothesis.

For the above reasons, the jail appeal deserves to be allowed and the impugned judgment of conviction is liable to the set aside.

The appeal is allowed. The impugned judgment of conviction is set aside. The appellant be released forthwith, if not wanted in any other case.

Keeping in view the provisions of section 437-A Cr.P.C. the appellant is directed to forthwith furnish a personal bond in the sum of Rs. One Lakh and two reliable sureties each in the like amount before the trial court, which shall be effective for a period of six months, along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the appellant on receipt of notice thereof shall appear before the Hon'ble Supreme Court.

Let a copy of this judgment along with lower court's record be sent back to the court concerned for immediate compliance.

Sri Ashok Kumar Yadav, Amicus Curiae, appearing for the appellant, who has efficiently assisted this Court, be paid Rs. 11,000/- as his fee.

Order Date :- 30.04.2018

S.B.