Smt. Budhraji vs State

Rakesh Tiwari and A.K. Roopanwal, JJ.—This appeal has been preferred against the judgment and order of conviction and sentence dated 5.2.1997 recorded by the VIth Additional Sessions Judge, Allahabad in S.T. No. 105 of 1994 State of U.P. v. Smt. Budhraji, whereby the Court convicted the Appellant for the offence u/s 302, I.P.C. and sentenced her to undergo life imprisonment.

The prosecution case as disclosed in the F.I.R. lodged by Sukkhu, the father of two minor children, is that on 13.11.1993 at about 6 p.m. the Appellant came to his house and took away his youngest son Ram Kumar. His eldest son Raj Kumar had also gone missing on the same day and his dead body was found in a well on the next morning, i.e., in the morning of 14.11.1993. The written report was given by the first informant at Police Station Tharwai, district Allahabad, whereupon the chik F.I.R. was written on the same day at 7.30 a.m. The case was registered in the G. D. at the same time.

Investigation of the case was taken up by Sub-Inspector Ajit Kumar Singh, the then Station Officer, Police Station Tharwai, district Allahabad. He copied out the F.I.R., G. D. of the registration of the case in the case diary and came at the site of occurrence. He found a crowd near the well of Ram Bharose. On enquiry it was found that dead body of a child was lying in the well. He, with the help of villagers, took out the dead body, which was identified as the dead body of Raj Kumar, son of the complainant. He then recorded the statement of Suman Tara, the daughter of the complainant. Thereafter panchayatnama of the dead body of Raj Kumar was prepared alongwith other connected papers. On the information received by the Investigating Officer the Appellant was arrested at about 1.05 p.m. on 14.11.1993. On interrogation she revealed that she had committed the murder of the youngest son of the complainant. Thereafter on her pointing out the dead body of Ram Kumar was taken out from a well and its panchayatnama and other papers were prepared. The Investigating Officer then recorded the statements of Vishram, wife of Sukkhu Pasi and Anand Sharma. After concluding the investigation he submitted the charge-sheet.

The trial was committed to the Court of Sessions Judge by the then C.J.M., Allahabad. She was charged u/s 302, I.P.C. by the trial Judge on 10.5.1994. She denied the charge and claimed for her trial.

The prosecution, in order to prove the charge, examined P.W. 1 Sukkhu, the complainant of the case, P.W. 2 Suman Tara, P.W. 3 Smt. Vimla Devi as the witnesses of taking away of Ram Kumar by the Appellant. Besides these witnesses P.W. 4 Vishram, the witness of recovery of dead body of Raj Kumar, P.W. 5 Anand Sharma, witness of recovery of dead bodies of Raj Kumar and Ram Kumar from different wells, P.W. 6 Lalji, who took out the dead bodies from the wells, P.W. 7 Constable Chhote Lal, the scribe of the chik F.I.R. and the G.D. of the registration of the case, P.W. 8 Dr. D. Dwivedi, who conducted post-mortem on the dead bodies and P.W. 9 Investigating Officer of the case were also produced as formal witnesses. The doctor had opined that the deaths had occurred due to drowning.

The statement of the Appellant was recorded u/s 313, Code of Criminal procedure in which she took the case of complete denial and stated that she was arrested from her house. She did not lead any evidence in her defence.

The learned Additional Sessions Judge after analysing the evidence on the record and hearing the parties found it proved beyond all reasonable doubts that the Appellant was the person, who had taken away the youngest son of the complainant and his dead body was recovered from a well on her pointing out and on this finding the Appellant was convicted and sentenced in the manner as stated above.

We have heard Mr. Rajeev Lochan Shukla, learned amicus curiae for the Appellant, Mr. Karuna Nand Vajpayee, learned A.G.A. for the State and perused the record.

It has been argued by Mr. Shukla that the trial Court wrongly appreciated the evidence on the record. There were material inconsistencies in the statements of the witnesses, that the factum of taking away the deceased Ram Kumar was not proved to the hilt and so the recovery of his dead body on the pointing out of the Appellant, therefore, the conviction of the Appellant was wrongly recorded by the trial Court and it is a case fit for allowing the appeal.

Mr. Vajpayee refuted all the above arguments.

It appears from the record that the case before the Court below rested solely on circumstantial evidence as nobody had seen the Appellant committing murder either of Raj Kumar or of Ram Kumar. The prosecution relied upon the following circumstances.

Firstly, that the Appellant had taken away Ram Kumar, the youngest son of the complaint, from his house in the evening of 13.11.1993 and secondly, that the dead body of Ram Kumar was recovered on 14.11.1993 from a well on the pointing out of the Appellant.

Now we will see as to whether both or any of the circumstances were proved by the prosecution beyond all reasonable doubts or not.

First of all we take up the first circumstance.

To prove the fact that the Appellant had taken away Ram Kumar on 13.11.1993 at 6.00 p.m. the prosecution relied upon the statements of P.W. 1 Sukkhu, P.W. 2 Suman Tara and P.W. 3 Smt. Vimla. P.W. 1 Sukkhu did not depose anything in his statement that he had seen the Appellant taking away the boy. Therefore, his statement is of no consequence in proving the above circumstance.

P.W. 2 Suman Tara in her statement stated that on the date of occurrence at about sunset the Appellant came to her house and requested for drinking water. She supplied the same. Later on she went in another room and in the meantime the Appellant took away Ram Kumar, who was sitting on a cot. The statement of this witness was challenged on the ground that she was tutored by the Counsel for the prosecution. In this regard aid of her statement has been taken in which she had stated that "Aaj hamko batane ke liye sarkari vakeel ne bataya tha. Jo vakeel sahab ne kaha wahi hamne aaj sahab ko bataya hai." By this statement an argument was developed that she was a tutored witness and should not have been relied upon by the trial Court. We do not find any substance in this argument. It is an admitted fact that P.W. 2 Suman Tara was a child witness. It is quite understandable that she could not understand the intricacy of the question put to her regarding which she gave the above answer. From the above statement only this much appears that she admitted before the Court that she was tested before coming into the witness-box. If a witness was tested before his or her production in the Court by that it cannot be said that he or she was made to state falsely during his or her examination. From this statement we do not find that the witness was made to depose falsely before the Court.

A look at the statement of this witness would reveal that whatever she stated in her statement in-chief could not be belied during her whole examination. There is not a single line in the whole examination of this witness by which it could be said that this part of her statement has been belied that the Appellant had come to her house and had taken away the minor child Ram Kumar.

The statement of this witness was also tried to be belied in the light of the statement of P.W. 1, who had stated that at the time of sunset he went to the temple of Shankerji and does not know as to when he came back. He further stated that he remained in the house throughout the night of the incident, which is a very unnatural circumstance.

Even if the statement, as told above, is believed in toto by that it cannot be inferred that P.W. 2 had not seen the Appellant taking away Ram Kumar. If P.W. 1 was not able to answer many questions and remained in his house throughout the night by that the statement of P.W. 2 cannot be said to be false in any way. Thus, on the strength of the statement of P.W. 1 there is no point at all to make the statement of P.W. 2 Suman Tara unbelievable.

The statement of P.W. 2 finds support from the statement of P.W. 3 Smt. Vimla, who had also deposed that the Appellant had come to her house and sent her out of the house on the pretext that her husband had been arrested by the police. She had also stated that she was told that her eldest son Raj Kumar was also following his father. On the information given by the Appellant she left Ram Kumar in the house and went for the search of her husband and the other son Raj Kumar. When both were not available she came back and asked from her daughter (P.W. 2) as to where Ram Kumar had gone. She said that the Appellant had taken him away. Thereafter she went to the house of the Appellant where she was not found and thereafter a crowd was assembled there. The statement of P.W. 3, as stated above, fully supports the statement of P.W. 2 regarding the time of taking away Ram Kumar by the Appellant.

It is pertinent to mention here that the above statement of P.W. 3 could not be belied during her whole examination.

From the statements of P.W. 2 and P.W. 3 it is also clear that they had no motive to falsely depose against the Appellant. Therefore, they are believable witnesses and from their statements it was fully proved that the Appellant and the Appellant alone was the person, who had taken away Ram Kumar at the time and on the date as alleged by the prosecution. Thus, the factum of taking away of Ram Kumar by the Appellant from the house of the complainant has very well been proved by the prosecution beyond all reasonable doubts.

Regarding the second circumstance, it has been argued by Mr. Shukla that the time of arrest of the Appellant has not been proved satisfactorily as there are variations in the statements of the witnesses in this regard.

We feel that the alleged discovery of the dead body of Ram Kumar on the pointing out of the Appellant cannot be used against her as the prosecution did not prove that information on the basis of which the discovery is said to have been made.

Even if the discovery is held to be not proved, that would not, in any way, tilt the balance of decision in favour of the Appellant as the circumstance that the Appellant had taken away the boy has been proved beyond all reasonable doubts.

Now the question would arise as to whether the circumstance of taking away of the boy can be held to be sufficient to prove the guilt of the Appellant beyond all the reasonable doubts. The answer to this question, in our opinion, would be in the affirmative.

It is a fact on the record that Ram Kumar was a child of one year of age at the time when he is said to have been taken away by the Appellant. There was no possibility of his going out of the house himself. There was also no possibility of his jumping into the well.

Thus, from the above circumstances this can safely be inferred that the Appellant and the Appellant alone was the person, who had taken away the boy, had subsequently eliminated him and therefore, the charge for murdering the boy is fully established against the Appellant.

Here we would like to make a mention of the argument of Mr. Shukla in which he has said that there could be no motive at all for the Appellant to commit the murder of Ram Kumar. Even if it be assumed that no motive for committing the murder of the child has been proved by the prosecution by that alone the statements of P.W. 2, who had seen the Appellant taking away the boy and of P.W. 3, who had stated that she had left the boy in the house on the wrong information supplied by the Appellant, cannot be disbelieved.

Thus, in view of the above, we do feel that there is no substance in the appeal and the conviction and the sentence were correctly recorded by the trial Court.

Accordingly, the appeal is dismissed. The Appellant is already in jail, there is no need for her surrender.

Let a copy of this judgment be sent to the C.J.M. concerned for compliance. A copy of this judgment be also supplied to the Appellant through the Superintendent of Jail, where she is detained.

The Court proposed the payment of fee of Rs. 3,300 to the amicus curiae but he politely refused to take the amount. We appreciate this gesture of the learned amicus curiae.