Smt. Roop Rani vs State of U.P.

D.K. Trivedi and J.C. Mishra, JJ.—This appeal has been filed by Smt. Roop Rani against the judgment and order dated 11.9.85 passed by Vth Additional Sessions Judge, Hardoi convicting her for offences punishable u/s 302, I.P.C. for committing murder of Madan Pal and Asha and u/s 307, I.P.C. for committing murder of Raj Pal and Ram Adhar and sentencing her to undergo life imprisonment and rigorous imprisonment for 7 years respectively.

The incident, according to the prosecution, took place at 5.00 p.m. on 24.9.84 in village Ataraksha Bujurg under the jurisdiction of P.S. Bilgram district Hardoi. The accused-Appellant Smt. Roop Rani is wife of Mohan Kisan, who had his house adjacent to the house of the informant Shri Krishna and there was dispute between them regarding the extent of the Sehan land. Mohan intended to construct a wall which was resisted by the informant Shri Krishna and his brother Sonelal. The prosecution case is that on account of the hindrance created by the informant and his family members the accused was infuriated and she often threatened to kill their children in case they did not permit to construct the wall at the place desired by her. This furnished motive for the crime.

The deceased Km. Asha aged about 7 years was daughter of the informant Shri Krishan. Raj Pal, deceased Madan and Ram Adhar respectively aged about 9-9 1/2 years. 6 years and 5 years were sons of Sone Lal. On the eventful day the informant had gone on the bank of river garra for cutting fodder while Sonelal had gone to Bilgram. The prosecution case is that the accused Roop Rani came near the children at about 5.00 p.m. when they were playing out of the house near pakar tree and allured them to accompany her on the pretext of providing khoond ''sugarcane'' and andiya ''maize corn''. The children on this allurement accompanied her to the well of Vijay Pal Singh located in the belt of cultivatory fields where she threw Raj Pal in the well. Thereafter she pushed Asha, Madan Pal and Ram Adhar in the well one after another. The children raised alarm attracted to by which Ram Bhajan who was returning to his house from his fields was attracted to the well and found the children drowning. He hanged his lathi inside the well. Raj Pal caught hold of the lathi and with the help of Ram Bhajan came out of the well. Ram Bhajan again hanged his lathi to help Ram Adhar but he could not catch the lathi. Ram Bhajan raised alarm thereby attracting Mool Chand (P.W. 3) to the spot. He entered into the well and took Ram Adhar. Madan Pal and Km. Asha out of the well. By the time Madan Pal and Km. Asha could be taken out of the well they died.

The informant and other villagers came out after the children were taken out of the well. On enquiry Raj Pal and Ram Adhar disclosed that they were thrown in the well by the accused (wife of Mohan Lai). The villagers including the informant then proceeded to search the accused but they could not trace her and she succeeded in escaping.

The informant then carried the dead body of Asha and Madan Pal to his house and then proceeded to the police station Bilgram where on his dictation head constable clerk Istiyaq Ahmad (P.W. 8) wrote chick report and registered a case under Sections 302, 307 and 201, I.P.C.

The investigation was taken over by Inspector Raj Kumar (P.W. 6) who recorded the statements of the informant Shri Krishna and eyewitness Mool Chand and then proceeded to the spot. He searched the accused but could not find her in the village. After sometime he saw her running through the fields and after identification by the informant he arrested her and sent to the police station through S.I. Vakil Ahmad. On the following morning he held inquest on the dead bodies, prepared police papers, got the dead bodies sealed up and despatched them through constable Virendra Kumar Singh (P.W. 7) and constable Amar Singh for post-mortem examination. He interrogated witnesses, inspected the site, prepared its plan and observing other formalities of investigation submitted charge-sheet against the accused-Appellant Smt. Roop Rani. The post-mortem examination of Km. Asha and Madan Pal was conducted by Dr. R.P. Singh on 25.9.84 at 4.30 p.m. and 5.00 p.m. respectively that their faces were pale, eyes closed and decomposition had set in. Froth appeared on compression of the chest. Mud was found present under the fingernails. They had not external injury on their body. Larynx trachea was found congested and the lungs were also found congested and distended like balloon. The Medical Officer opined that death occurred due to asphyxia as a result of drowning.

The prosecution examined informant Shri Krishna (P.W. 1), child Raj Pal (P.W. 2) eye-witnesses Mool Chand (P.W. 3) and Ram Bhajan (P.W. 4) besides formal witnesses Dr. R.P. Singh (P.W. 5) who had conducted post-mortem examination, the Investigating Officer Inspector Raj Kumar Singh (P.W. 6), constable Virendra Kumar Singh who had carried the dead bodies and head constable clerk Istiyaq Ahmad (P.W. 8). The accused led no evidence in defence. She denied the charge and attributed her false implication due to enmity. On appraisal of the evidence the learned Additional Sessions Judge found that the case was proved to the hilt. He, therefore, convicted and sentenced the accused as aforesaid.

The accused filed jail appeal. As there was no one to conduct her case Sri R.K. Dwivedi was appointed amicus curiae.

We have heard the learned amicus curiae and learned Additional Government Advocate.

The learned amicus curiae contended that except Raj Pal who is a child witness there is no eyewitness of the occurrence of offence and the learned Additional Sessions Judge committed illegality in convicting the Appellant on the solitary testimony of Raj Pal whose evidence was the result of tutoring. He further contended that the first information report was belated and in absence of proper explanation and special report the trial Judge committed error in accepting it as corroborative piece of evidence. It is true that neither the informant or Mool Chand nor Ram Bhajan was present at the time the children were thrown in the well and, therefore, the evidence of Raj Pal who is undoubtedly a child witness required strict and careful scrutiny. There is no rule that even if the evidence of a child witness is found to be reliable the conviction cannot be based on it. In Nirmal Kumar v. State of U.P. 1993 SCC 289. relied on by the learned amicus curiae is of no avail as in the case before the Supreme Court the evidence of the child witnesses suffered from material contradictions and on the face of it, it was found to be unnatural.

It is true that before an evidence of a child is believed possibility of the tutoring must be excluded, as it is known fact that the child witnesses are tempted to accept the facts, which are illusory and nonexistent. With this background we proceed to examine whether the evidence of the child witness Raj Pal was rightly accepted by the learned Additional Sessions Judge.

The learned Judge before proceeding to record the statement on oath made preliminary examination and on the basis of the questions and answers he came to the conclusion that he understood the sanctity of oath and had sufficient maturity to understand the import of questions and giving rationale answers. The child witness supported the prosecution case. He also identified the accused and stated that it was she who had carried and thrown them in the well. He stated that the well was situated at a distance of 4 furlongs from the place where they were playing. He also stated that he knew swimming and while falling in the well he had not sustained any injury.

The learned Counsel contended that the evidence of this child witness suffers from contradictions. He referred to the statement of the informant that the children were immature and off and on went to the house of the accused Smt. Roop Rani. He then referred to the statement of the child who stated that on account of dispute they did not go to her house. The learned amicus curiae contended that this contradiction is very material and affects credibility of the child witness. He, however, did not appreciate the import of the answers given by this witness. Raj Pal only intended to say that he did not visit the house of the accused regularly. Since they were children they sometimes did go to her house as stated by the informant. There is no contradiction much less material contradictions between the witnesses.

The learned amicus curiae then contended that the evidence of Raj Pal suffers from contradiction regarding time. He stated that at the time when he was thrown in (he well the night was falling. He, however, clarified while they were playing the sun had not set in and when Smt. Roop Rani carried to the well the sun had started setting. It may be recollected that the incident took place in September at about 5.00 p.m. The sun undoubtedly sets prior to 6.00 p.m. in the last week of September. The statements that the sun was setting when he was carried to well appears to be correct. From this statement there is no doubt that at the time when the incident took place sun was still visible and had not set. Therefore, there is no contradiction regarding time.

The child witness has fully supported the prosecution case and has given his evidence in a very natural way. His testimony does not suffer from any infirmity and inspires confidence. The learned Judge who had occasion to record his statement and watch his demeanour has found him to be a reliable witness. There is nothing on the record to indicate that this conclusion is incorrect. He has also stated that he has disclosed the involvement of the accused and the manner of the incident to his uncle and other persons who had arrived at the place of occurrence after he was taken out of the well.

It is a matter of caution that the evidence of a child witness should not be believed unless it is corroborated by some other witness. In the case before us the evidence of the child Raj Pal is substantially corroborated by the evidence of Mool Chand and Ram Bhajan who had happened to arrive at the place of occurrence immediately after the incident. It is true that these witnesses were not present at the time of the incident but unless they had arrived immediately afterwards neither Raj Pal nor his brother would have survived. This is a strong circumstance, which proves the presence of these witnesses immediately after the incident. Ram Bhajan had gone to his fields for watching his crop and while returning to his house he was attracted on the outcries of the children. It may be remembered that Raj Pal knew swimming and the prosecution evidence regarding raising alarm by the children appears to be natural. The children wert thrown one by one in the well and. therefore, they had sufficient opportunity to raise an alarm.

The learned amicus curiae contended that since the Investigating Officer had not shown field of Ram Bhajan in the site plan his evidence should not be believed. In our opinion there was no necessity to indicate the place of the field since this witness was not present at his field at the time of occurrence but was coming back to his house and while on the way he reached near the well he heard the alarm and rushed to the well.

The learned amicus curiae also contended that Raj Pal could not be extracted out of the well with the help of lathi since the well was about 10 feet deep. This argument overlooks the fact that the people use different size of lathis in different localities. No foundation was laid down in the cross-examination as to the length of the lathi. Furthermore while extracting Ram Bhajan would have bent his body and stretched his hands. Raj Pal, who also knew swimming, would have raised his body and by stretching his hands he must not have felt any difficulty in catching hold of the lathi. The defence counsel had not given an opportunity to explain these fact otherwise the witness would have demonstrated how with the help of lathi he had come out of the well in our opinion, there is no unnaturality in the evidence.

Having found that the testimony of the child witness is natural and does not suffer from tutoring we proceed to consider the evidence of the other two prosecution witnesses, viz., Ram Bhajan and Mool Chand. Both these witnesses are independent and had no affinity with the informant or any animus against the accused. It is true that they were not present at the time of the incident but they had rushed to the spot attracted by outcries and had saved two boys. There is no reason to disbelieve the evidence of these witnesses who are, as observed above, independent witnesses and had no reasons whatsoever to implicate the accused in the case. The evidence of these witnesses substantially supports the reliable testimony of the child witness. They also stated that Raj Pal had after being taken out of the well told them and other villagers that he, his brothers and cousin sister were thrown by the accused Appellant in the well.

In our opinion, the ocular evidence comprises of reliable evidence of the child Raj Pal which is supported substantially by the evidence of independent witnesses and therefore the learned Additional Sessions Judge committed no illegality in accepting the prosecution case as true.

The motive behind the crime was dispute between the two families regarding extent of sehan land. The fathers of victims were not permitting the accused and her husband to raise intervening wall. It is true that this motive was not strong enough for commission of murder of children but it is well known that different persons react in different ways and there is no hard and fast rule to weigh in scale how a person would react. It is equally well known that women are sentimental. Her remarks made earlier to kill or chew the children was not taken seriously by the family members but it was sufficient to indicate the mind of the accused. In our opinion the motive was successfully proved by the prosecution.

The learned amicus curiae then contended that the F.I.R. is belated, as it was lodged over 6 hours after the occurrence at the P.S. located 4 miles away. The report was no doubt delayed but there is proper explanation in the report itself. The informant was not present at the place of incident and had come after the children were extracted. After his return the children Raj Pal and Ram Adhar had narrated the incident and thereafter he along with others attempted to search the culprit. After spending some time he carried the dead bodies to his house. The family was shocked and on seeing the dead bodies they started weeping. The informant must have taken some time to console them. He thereafter went to police station to dictate the report. In this situation the time taken cannot be said to be unreasonable. The head constable clerk registered the case. Crime No. is written on the top of chick report and other police papers, viz., challan lash, photo lash, report for conducting post-mortem examination, the genuineness of which was admitted by the defence counsel.

The learned amicus curiae then contended that the cutting in the date in chick report indicates some foul play and there is possibility of the report being registered ante timed. It is true that at two places 23.9.84 was written and by overwriting ''3'' in ''23'' was changed to ''23'' (sic) but since neither the incident had taken place on 23rd nor report could be written on that date the only explanation that is possible is that this date was written by mistake and was corrected immediately. The head constable clerk would not even thought of writing ''23'' as the incident could not have occurred on that date. The explanation of the Investigating Officer, therefore, appears to be natural and probable.

The learned amicus curiae then contended that the prosecution has not led any evidence to prove the despatch of special report to authorities nor the despatch of the report to the Magistrate concerned which shows that the report was recorded much later than the stated date and time as held in Ishwar Singh Vs. State of U.P., and Marudanal Aughsji v. State of Kerala 1980 SCC 985. In the case relied on there was positive evidence to indicate delayed receipt of the report in the office of the Magistrate while in the case in the hand no foundation was laid down in the cross-examination of the witnesses. The chick report shows that the report, which was recorded at 11.15 p.m., was sent to the Magistrate on 25.9.84 and, therefore, despatch cannot be said to be delayed. Moreover, no witness was cross-examined regarding despatch of special reports, therefore, it is not open to the counsel to argue that they were not sent within the reasonable time.

We find that the report was neither ante-timed nor ante dated and there is plausible explanation for the delay and thus it was rightly taken as corroborative piece of evidence by the trial court.

The learned amicus curiae then contended that there are two Mohans and, therefore, identity of culprit is not established. However, there is nothing on record to indicate that the wife of other Mohan is also named Smt. Roop Rani. She is named in the F.I.R. Raj Pal who is an eyewitness as also the victim of the occurrence identified her in the Court, named her, and stated that it was she who had thrown them in the well. His testimony in this regard was not challenged in the cross-examination.

The learned amicus curiae then contended that prosecution has not offered any explanation regarding presence of makka pieces found in the stomach of the deceased children which falsifies the prosecution case. This argument overlooks the fact that maize is available in villages in plenty in the month of September and as it is relished by children the victim could have taken if while playing or shortly before leaving their house for playing. The presence of maize piece in the stomach is not unnatural and does not at all affect the credibility of the witness nor the prosecution case can be thrown on account of absence of this fact in F.I.R. of evidence more so when there was no cross-examination of this fact. Dr. R.P. Singh stated that the death of the children was caused by asphyxia as a result of drowning and could be caused at 5-6 p.m. on 24.9.84. Thus, the prosecution case regarding date and time of the incident fully corroborated by medical evidence. Furthermore, the defence has at no stage disputed the date and time of the incident.

The learned amicus curiae referred to the statement of witness who admitted that several persons had arrived at the well shortly after the occurrence but none of them were examined and their non-examination according to the learned amicus curiae seriously affects the authenticity of the prosecution case. However, there is nothing on record to show that any villager had arrived prior to the arrival of Ram Bhajan and Mool Chand who were named in the F.I.R. and besides being independent witnesses they had taken out the children from the well and saved two of them, who had narrated the incident and disclosed the role of the Appellant. Their evidence is admissible u/s 6 of the Evidence Act as res jestae. They have been found to be reliable and trustworthy witnesses. Therefore, prosecution was not obliged to examine the villagers who arrived later and were not in a position to disclose any fact which was not known to the witness examined by the prosecution. Their non-examination was, therefore, inconsequential.

The non-examination of S.I. Hari Prasad Sharma who prepared inquest report is also inconsequential as the genuineness of these documents and other police papers was admitted by defence.

On consideration of facts and circumstances and submissions of the learned amicus curiae and learned Addl. Government Advocate we find that the evidence of the child witness is trustworthy and is substantially corroborated by the testimony of independent witnesses Ram Bhajan and Mool Chand. By the reliable ocular evidence, corroborated by F.I.R. which was lodged without unreasonable delay, and medical evidence and also finds assurance from motive, the prosecution has proved its case beyond shadow of doubt that the murders were committed by the Appellant and none else. She had attempted to commit murders of two children and was rightly convicted and sentenced by the learned Additional Sessions Judge. We do not find any reason to interfere with conviction and sentence. The accused is in jail and will serve the sentence awarded.

Before parting with this judgment we record our appreciation for the good and laboured arguments advanced by the learned amicus curiae.