Smt. Geeta Devi vs State of U.P.

N.K. Mehrotra, J.—This is an appeal u/s 374(2) of the Code of Criminal Procedure against the judgment and order dated 3.11.1987 passed by the Additional Sessions Judge in Sessions Trial No. 17 of 1987, State v. Smt. Gita Devi, in which the accused was tried u/s 302 Indian Penal Code but was ultimately convicted u/s 304(1) and sentenced to a rigorous imprisonment of seven years.

According to the prosecution story, on 29.8.1985, Ram Gopal lodged a written information to the police station Kachauna to the effect that the dead body of a child is lying underneath the well near the house of Jaikaran Gupta in his village. This information was entered in the G.D. No. 8, dated 29.8.1985 at the police station. Investigation was entrusted to Shri Surendra Pal Singh who reached on the spot on the same date. He prepared inquest report on 29.8.1985 at 12.50 p.m. He also prepared police form No. 13, photo laash and report to the R.I. and the C.M.O. He also prepared sample of seal. After that the dead body was sent for post mortem and on the same day, the Investigating Officer prepared the site plan after inspecting the spot. Autopsy was done by Dr. S. S. Rathore on 30.8.1985 and he opined that the death of the child occurred due to asphyxia as a result of drowning. No mark of injury was found over the body. Investigating Officer after completing the investigation, submitted a charge-sheet against the accused Smt. Gita Devi. During the trial charge u/s 302 was framed against the accused Smt. Gita Devi to which she pleaded not guilty. At the time of her statement, she has stated that her husband used to remain annoyed with her because of the birth of a daughter. He used to say that why a son was not produced. She has further stated that on the date of incident at about 4.00 p.m., her husband has come from Lucknow where he was employed and he had beaten her and she had gone to bed along with the daughter in a room and her husband had gone to another bed room. When she awoke at about 3.00 a.m., in the night, she did not find her daughter and the husband inside the house and when the dead body of her female child was found from the well, only then she came to know about the death of her female child.

Prosecution examined P.W. 1 Ram Gopal the informant, P.W. 2 Chittar, P.W. 3 Ram Awatar, P.W. 4 Dinesh Prakash Singh, P.W. 5 Shiv Ram, P.W. 6 S. S. Rathore, P.W. 7 S.I. Surendra Pal Singh and P.W. 8 S.I. D. D. Chaturvedi.

P.W. 1 is only an informant who has proved the F.I.R., exhibit Ka-1. He has only informed that the dead body of a child was found lying near the well in the village and several villagers gathered on the spot. P.W. 2 Chittar and P.W. 3 Ram Avtar are the witnesses of the fact that they had seen the accused Smt. Gita Devi near the well at the alleged time. P.W. 2 Chittar is the witness of extra judicial confession by the accused. He has given statement that on the next date from the incident, Gita Devi had come to him and confessed about the throwing of the child in the well. P.W. 3 Ram Avtar has given the statement that he had seen Gita Devi returning from the side of the well in the night. P.W. 4 Dinesh Prakash Singh is the formal witness who has proved G.D. P.W. 5 Shiv Ram Yadav is the formal witness who had taken the dead body for post-mortem. P.W. 6 Dr. S. S. Rathore has conducted the autopsy of the dead body and has prepared post-mortem report.P. Ws. 7 and 8 S.I. Surendra Pal Singh and S.I. D. D. Chaturvedi are the Investigating Officer.

Learned Sessions Judge, relying on the evidence of the prosecution, convicted accused Gita Devi u/s 304 Part (I) of I.P.C. and sentenced her to undergo rigorous imprisonment for seven years. It is against this judgment and order, the present appeal has been preferred.

I have heard Shri Arun Sinha, learned Counsel for the Appellant and Smt. Maya Bhatt learned Counsel for the State.

A perusal of the impugned judgment and order goes to show that there was two types of witnesses before the trial court ; one set of evidence is of extra-judicial confession of Gita Devi which the prosecution has adduced through P.W. 2 Chittar and another type of evidence is the circumstantial evidence. So far as the evidence of extra-judicial confession is concerned, the learned Sessions Judge has rightly disbelieved the evidence of extra-judicial confession for the correct reasoning given in the judgment. Now there remains only statement of Ram Avtar, P.W. 3. He has stated on oath that on intervening night of 28/29.8.1985, he along with Chander and Mathuri were on duty of chowkidari and in the midnight when they reached near the house of Brij Mohan, they heard sound ''ghammah'' in the well and at the same time, he saw accused Gita Devi coming from the side of the well. He further stated that on questioning, Gita Devi stated that she had gone to take water from the well in which her bucket was fallen. He further stated that he had gone to his field in the morning and returned back in the noon, when he came to know that the dead body of the daughter of Gita Devi has been recovered from the well. It is on the basis of this statement, the learned trial court has convicted accused Gita Devi u/s 304 Part (I) of Indian Penal Code. The statement of Ram Avtar is there to prove a circumstance that Gita Devi was found near the well in the night and she had explained the sound of ''ghammah'' to this witness.

In my opinion, it is fundamental principle of criminal jurisprudence that circumstantial evidence should point indubitably to the conclusion that it is the accused and the accused only who is the perpetrator of the crime, and that such evidence should be incompatible with the innocence of the accused. This view has been taken in a catena of cases of circumstantial evidence decided by the Apex Court.

I am further of the view that if the evidence is consistent with any other natural explanation, there is an element of doubt of which the accused must be given the benefit. Where the evidence is of circumstantial nature, it must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. Now I have to see whether the sole testimony of Ram Avtar P.W. 3 is sufficient to complete such chain of evidence to prove the guilt of accused Gita Devi and to hold that it is only the accused and nobody else who threw the female child in the well. This statement of Ram Avtar is to be seen after keeping in view the reasonable explanation given by the accused u/s 313, Cr. P.C. which is most natural in the circumstances of the case. The mere fact that Ram Avtar saw the accused Gita Devi near the well at the time of sound of ''ghammah'' is not sufficient to prove the guilt of accused Gita Devi and while she has explained the differences with her husband because of the birth of a female child. At the time of the considering the statement of Ram Avtar, one has to keep in mind that there is every probability that it is the father of the female child who can think of throwing the female child in the well and not the mother. A mother who keeps the child in the womb for a period of nine months, can rarely think of throwing a child after a delivery, in the well while there can be every occasion for the father to throw the female child in the well because it is established that he used to quarrel with his wife because of the birth of female child. Therefore, it is most befitting case in which the benefit of doubt can be given to accused Gita Devi, the revisionist.

In my opinion, in view of the incomplete circumstances, which are not compatible with the guilt of the accused Gita Devi, the Appellant is entitled to get the benefit of doubt and in result, the acquittal.

In result, the appeal is allowed. The impugned judgment and order dated 3.11.1987, passed in Sessions Trial No. 17 of 1987, State v. Smt. Gita Devi, is set aside and accused Gita Devi is given benefit of doubt and is acquitted u/s 304 Part (I) of the Indian Penal Code.