Rabiya Khatoon @ Rani @ Rabia Katoon vs State Of Jharkhand `

Gautam Kumar Choudhary, J

This   appeal   is   directed   against   the judgment of conviction and sentence under Section 302, 201 and 369 and of the IPC.

On 20.05.2014, minor daughter of the informant aged about 4 years went to be missing from her home. The informant and her family searched for throughout the night and when she could not be found, a frantic search was made and around 10 O’clock in the morning, her dead body was found in a well in Rahmat Nagar. Her dead body was taken out from the well and her silver anklets and gold earring were found missing. There were multiple injuries over her face. The informant suspected the appellant as she was seen with the child and after the incidence, her house was locked and she was not there.

On the basis of written report, Sisai P.S. Case No.104/14 was registered under Sections 364/302/201 of the IPC against unknown. Police on investigation, submitted charge sheet against this appellant, who was put on trial and convicted for the offence.

Altogether 14 witnesses have been examined and relevant documents have been adduced into evidence and marked as Exhibit 1 – 16 which include the post mortem examination report, seizure list of the silver Payals and gold earrings of the deceased, statement under Section 164 of the Cr.P.C. and TIP chart of the material exhibits. The silver Payals and earrings of the deceased were produced and marked as material exhibits.

It is argued by the learned counsel on behalf of the appellant that there is no direct eye witness to the incidence and the prosecution case rests on circumstantial evidence, and from the chain of circumstance, an inference cannot be drawn that it was only the appellant and none-else who had committed the offence. Appellant has also been convicted for offence under Section 369 of the IPC, for which charge had not been framed, thereby causing prejudice to the appellant. The confessional statement leading to recovery of ornaments of the deceased, does not prove the charge of murder against the appellant.

Learned A.P.P. has defended the judgment of conviction and sentence.

Homicidal death of the infant child caused by throttling, has been proved by the Medical Board which conducted the autopsy on the dead body. The post mortem examination report (Exhibit 2), has been proved by P.W. 2.

On close scrutiny of the prosecution evidence, the following incriminating circumstances is proved against the appellant: -

I. P.W. 4 has deposed that he saw the appellant going with the child at 11.30 at night and thereafter, she went missing. Announcements were made from the mosque regarding the missing child.

II. The appellant had absconded immediately after the incidence. P.W. 8 is the mother of the deceased girl child, she has deposed that after she went missing, she suspected the appellant to be involved and went to her house where her house was found to be locked.

III. On the disclosure statement (Exhibit 13) made by the appellant that earrings and Payal of the deceased was thrown in the septic tank in her house, search was made and it was recovered from there. The seizure list has been made and have been duly proved. They were produced and marked as material Exhibits I, II and II/A. They were put on TIP and have been identified by the witnesses. P.W. 3 and P.W. 5 have deposed that two small gold ear ring and a sliver Payal of the deceased was recovered from the septic tank Samsher Ali.

IV. Recovered ear ring and Payal were put on TIP and were duly identified by the mother and father of the deceased child. The TIP chart has been proved and marked as Ext-8.

All the incriminating circumstances and evidences were put to the appellant in the statement under Section-313 of the Cr.P.C, but no explanation, has been offered by the appellant, from which an inference can be drawn that it was not the appellant, but someone else who was the author of the ghastly crime. The appellant was last seen with the deceased child at night when family members and others were preoccupied in a funeral of some other person. Thereafter, she went missing and was only found the next day, from a nearby well. Initially appellant went missing, but later she was apprehended and on her disclosure statement, the ear-rings and silver anklets were found from the septic tank. These articles were put on TIP and were duly identified by the parents of the deceased. In the absence of any explanation about how the appellant had the personal knowledge about the presence of these jewelleries to be in the septic tank, the only logical inference that can be drawn is that she was the author of crime and had thrown the ear rings, thereafter to cause the disappearance of evidence. The chain is complete and there is no infirmity in conviction and sentence of the appellant under Sections 302 and 201 of the IPC. Learned trial Court has discussed at length the evidence and circumstance and the finding needs no interference.

As far as conviction under Section 369 of the IPC is concerned, there is no infirmity in conviction as charge had been framed under Section 364 of the IPC and it has been specifically stated in the charge that the kidnapped child was 4 years old. No prejudice can be said to be caused for non-framing of charge under Section 369 of the IPC to the defence leading to failure of justice. Non-framing of charge in the instant case is curable under Section 464 of the Cr.P.C [See Lallan Rai v. State of Bihar, (2003) 1 SCC  268].  Conviction  under  Section  369  of  the  IPC  is  accordingly affirmed.

Criminal Appeal stands dismissed.

Pending Interlocutory Application, if any, is disposed of.

Let the Trial Court Records be transmitted to the Court concerned along with a copy of this judgment.