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SMT. SHANTI versus STATE

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SMT. SHANTI v STATE - CRLA Case No. 197 of 2001 [2006] RD-RJ 846 (26 April 2006)

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IN THE HIGH COURT OF JUDIC ATURE FOR RAJ ASTH AN

AT JODHPUR

JUDGMENT

Re shma Ram Vs State o f Rajasthan

(1) D.B.CRIMINAL APPE AL NO. 223/2001

Smt.Shanti Vs State o f Rajasthan

(2) D.B.CRIMINAL APPE AL NO. 197/2001 against the judgment dt. 17.3. 2001 passed by Addl.Sessions Judge No.1, Bikaner, in Sessions Case No. 76 /20 00.

Date of Judgment: April 26, 2006

PRESENT

HON'BLE MR.JUSTI CE N.N.MAT HUR

HON' BLE MR.JUST ICE MANAK MOHT A

Mr.J.S.Choudhary )

Mr.Pradeep Choudhary )

Mr.P.N.Mohanani )

Mr.K.R.Bishnoi ) for appellants.

Mr. Vishnu Kachhw aha, Pu blic Prosecuto r.

REPO RTABLE BY THE COURT : (PER HON' BLE MR.MATHUR J.) 1. These tw o appeals are directed against the judgment dated 17.3.200 1 passed by the learned Additional Sessions

Judge No. 1, Bikaner convicting appellants Reshma Ram and

Smt. Sh anti, wife of deceased Anopa Ram of offen ce under

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Section 302 IPC and sentencing each of them to imprisonment for life and to pay a fine of Rs.500/ - and in default of payment of fine, to further undergo one month's simple imprisonment. 2. The prosecution case as disclosed during the trial is that on 19. 11. 1999 at 12.30 P. M. , P. W.4 Jagmala Ra m submitted a written report at the Police Station, Bajj u stating that his so n Anopa Ram was mentally sick for the last 3- 4 years. Inspite of all sort of treatment, his mental condition did not improve. He used to live with his family in a Dhani constructed on his field. In the morning, wife of

Anopa informed him that at about 4 A.M. , her husband went to the field to push deer & wild cows off the field but he accidentally fell in the water tank. When sh e went to fetch w ater in the mo rnin g, his dead body was found lying in the w ater. He went to the spot alongwith his son P.W. 3 Mano her

Lal. It was also stated that Anopa Ram died on accou nt of accidental fall in the water tank being insane. On this information, police commenced enquiry under Se ctio n 174

CrPC. The police proceeded to the spot and prepared the site plan Ex.P.3 an d Ex. P. 3A. The inquest report Ex. P. 7 w as also prepared. The dead body was sent for post mortem.

P.W .5 Dr.Satya Narain conducted the post mortem on the dead body of Anopa Ram vide Ex.P.10 and noticed

-3- following injuries on his person:

"1. Injury No. 1 Abrasion 0.5cm x 0. 3cm on chin anteriorly about 1. 5cm left lateral to midline.

Antemortem & fresh befo re death; 2. Injury No. 2 Abraded contu sion on mu scle surface of left cheek 2cm x 2cm against I & II on left low er molars. Antemo rte m & fresh before death ; 3. Injury No. 3 Co ntusio n 3cm x 1cm on tongue anteriorly near tip with swelling. Antem ortem & fresh before death."

The doctor reserved the o pinion stating that cause of death shall be ascertained after receipt of chemical examination report & diatom examination report, for which visceras w ere preserved and sealed. The dead body of

Anopa Ram was en trusted to his father Jagmala Ram on the same day for funeral. 3. On 21. 11.1999 at about 1 P. M., P. W.1 Sh ankerlal submitted a fresh report Ex. P.1 at the Police Station, Ba j ju stating inter alia that they were four brother s viz ;

Manoharlal, deceased Anopa Ram, Banw arilal and himself.

They lived in Dhani in Chak 1 BJM. On 19.11. 99, his elder bro ther Manoharlal informed that the dead body o f Ano pa

Ram was lying in th e tank of the field. Th e half of his body i.e. below w aist was in the water. He rushed to the spot alongwith his wife. On enquiry, it revealed that wife of

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Anopa Ram viz; Shanti was having illicit relations with the appellan t Reshma Ram. As per his information, Mst. Shanti and Reshma Ram killed Anopa Ram and th rew his body in the tank. On this information Ex.P.1, the police register ed a case fo r offence u/s. 302 IPC. Appellant Reshma Ram w as arrested on 22. 11.1999 vide Ex. P. 14. At the same time,

Mst.Shanti was also arrested on 22. 11. 99 vide Ex.P.5. At the time of arrest, she w as carrying a female child of two and a half years. After usual investigation, th e police laid chargesh eet against the appellants for offence u/s. 302 IPC.

The appellants denied the charge s levelled against them and claimed trial. The prosecution in support of the case, adduced oral & documentary evidence. Appellant Shanti in her statement under Se ctio n 313 CrPC denied the correctne ss of the prose cution evidence appearin g against her. She stated that her husband w as insane and he died on account of insanity. She denied the allegation of her illicit relations with appellant Reshma Ram. She pleaded inno cence. Appellant Resh ma Ram also denied the allegations of his illicit relations with Smt.Shanti and pleaded innocence. In defence, they examined D.W. 1 Bhikha

Ram and D.W. 2 Kisna Ram. The learned trial Court discredited the testimon y of P.W. 1 Shankerlal, P. W.3

Manoherlal and P. W.4 Jagmala Ram with respect to extra judicial confessio n of Smt. Shanti. Ho wever, the learned

Judge on the sole testimony of child witness P.W .2 Raja

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Ram found the prosecu tion case proved. Accor din gly, the learned Judge convicted and sen tenced the appellants in the manner stated above. 4. Befo re we proceed to appreciate the sole testimony of child witness, P. W.2 Raja Raj, it would be convenient to acquaint with the broad features of the case by referring to the prosecution eviden ce in brief. 5. P.W .1 Shankerlal is the brother of decease d Anopa

Ram. He reiterated the averments made in the written F. I.R.

Ex.P.1 referr ed- to above. In addition, he stated that before the funeral took place, he alongwith his brother P. W.3

Manoherlal and father P.W .4 Jagmala Ram took Mst. Sh anti into confiden ce a nd enquired about the cause o f death of

Anopa Ram. It was disclosed that she was having illicit relations with appellant Reshma Ram. On the fateful night, appellan t Re shma Ram entered in the Dhani and tried to indulge in sexual intercourse with her, at that time her husband woke up and fired Reshma Ram. He also gave 3- 4 slaps to him. He also kicked her. He also gave threatening to call his brother Shankerlal and make their relations public. He also gave a threatening of reporting the matter to the police. Her husband w ent ou t of the Dhani and pro ceeded tow ards the Dhani of Man oharlal. At that time,

Smt. Sh anti exhorted Resh ma Ram to kill Anopa Ram. She

-6- threw him on the ground and sat on his chest. Appellant

Reshma Ram smothered his mouth as a result of which he died. Ther eafte r, both of them threw the dead bo dy in the tan k. The statem ents of P.W .3 Man oharlal and P.W. 4

Jagmala Ram are almost on the same line. 6. P.W .6 Bala Ram and P. W.7 Phul Nath are fo rmal police witn esses. They have given details of the investigation.

P.W .8 Mahendra Kumar is the investigating officer. He h as also given details of the investigation. 7. D. W. 1 Bhikha Ram deposed that deceased Anopa Ram w as insane. He also stated that he never heard about the illicit relations betwee n Reshma Ram and Shanti. After funeral, he remained at the Dhani but at no stage,

Mst.Shanti ever talked to Jagmala Ram, Manoharlal an d

Shankerlal. Similar is the statem ent of D. W.2 Kisna Ram. He also stated that for 3-4 days, Mst. Shanti was continuously w eepin g. Ther e w as no occasion for her to make the alleged extra judicial confession befor e her father in law an d bro ther in laws. 8. It was argued befor e the trial Court that as per the statement of P. W. 1 Shankerlal, P.W. 3 Mano herlal and P. W. 4

Jagmala Ram, Mst. Shanti made extra judicial confession on 19 t h November, 1999 itself. Thus, befor e funeral, there w as

-7- a considerable delay in filing the F.I. R. E x.P.1 on 21. 11.1999. The trial Court also found that the alleged extra judicial confessio n cannot be said to be voluntary as she w as put under tremendous pressur e by P.W. 1 Shankerlal,

P.W .3 Manoharlal and P. W. 4 Jagmala Ram. Inspite of the fact that the alleged disclosure was obtained on 19t h

November itself before funeral, report inco rporating said act w as filed as late as on 21. 11.1 999 after due deliberation s.

The Court also noticed the number of infirmities in the alleged extra judicial confession. In the opinion of the trial

Court, the evidence of these witnesses with respect to extra judicial co nfession w as not credit-worthy. The finding is not challenged by the learned Public Prose cutor. On re- appreciation of entire evidence in that regard, we are in complete agreem ent with the trial Court as far as the finding with respe ct to the evidence of extra judicial confession is concerned. 9. Befo re w e proceed to deal with the evidence of the child witness P. W. 2 Raja Ram, it would be conven ien t to refresh the law in that regard. 10. Section 118 of the Evidence Act lays dow n that every person irrespe ctive of his age, is comp etent to testify unless he is found incompeten t due to the reason mentioned therein. Section 118 makes the understanding as the sole

-8- test o f competency of a witness, therefore, th e competency of a child as to give evidence depends not only on his a ge but the degree of his understanding. 11. It will be useful to refer to som e of the decisions of the Apex Court having bearing on the question relating to appreciation of eviden ce of a child witness. 12. In State of Bihar vs. Kapil Singh reported in AIR 1969

SC 53, th e Apex Court obse rved as under :

"While such a child witness can often be expe cted to give out a true version because of her innocence, there is alwa ys the danger in accepting the evidence of such a witn ess that under influen ce, she might have coached to give out a version by person s wh o ma y have influence on her. In this case, there are a number of circumstances which, in our opinion, indicate th at it will not be quite safe to rely on her evidence. " 13. Re cently in Bhagw an Singh vs. State of M.P. Reported in AIR 2003 SC 1088, the Apex Court observed that the law reco gnizes the child as a comp etent witness but a child particularly at such a ten der age of six years, who is una ble to form a proper opinion about the natu re of the incident because o f immaturity of understanding, is not considered by the co urt to be a witness whose sole testimony can be relied without other corro bo rative evidence. The Court gave a caution that the evidence of child is required to be

-9- evalu ated carefully because he is an easy prey to tutoring.

Theref or e, alw ays the Court looks for adequate corro bo ration from oth er evidence to his testimony. Thus, the statement of the child witness is required to be scrutinized with extreme care and caution, when he is the only eye witness. 14. Ke eping in view the aforesaid principles bearing on the question of appreciation of the statem en t of a child witness, we proce ed to scrutinize the statement of P. W.2 Raja Ra m, who is admittedly a child witness, being 10 years old. 15. The learned trial Judge in order to adjudge the comp eten cy of the child witness, put preliminary qu estions and got satisfied that the witness is capable of understanding and giving rational answ ers. He deposed that deceased Anopa Ram was his father. He identified th e appellant Smt.Shanti as his mother. He also stated tha t appellant Reshma Ram was known to him. He resided at a distance of 100 paw andas from their field. He was a frequent visito r of their Dhani. He also stated that he alongwith his mother, father, brother & sister lived in th e

Dhani. On the fateful day, the entire family w hich included his father, mother, brother, sister & himself, was sleeping in the hut. When h e woke up, he found Reshma Ram indulged in sexu al intercourse with his mother. His father also wo ke

-10- up. Appellant Reshma Ram was given a slap by his father.

He also questioned appellant Re shma Ram for visiting his

Dhani. His father also gave 2- 3 kicks to his mother and questioned her for indulging in sexual intercour se with

Re shma Ram. His father also told them that he would report the matter to his brothers Mano harlal and Shan karlal a nd make the matter pu blic. On this, appellant Shanti exhorted

Re shma Ram to kill his father Anopa Ram, else he would make a complaint of the inciden t. They killed him and threw his body in the tank. His moth er threatened him that if he divulged the incident to anybody, he w ould also be killed.

He further stated that his mother caught hold the legs of his father after th rowing him on th e ground and appellant

Re shma Ram killed him by pressing his nose, mo uth a nd neck. Out of fear, he did n ot raise the voice and remained silent. In the morning, his uncle P.W .3 Manohar arrived there. Anoth er uncle P. W.1 Shan karlal arrived in the afternoon. His gran d father also arrived th ere. In the cro ss- examination, he admitted that after the death of his father, he was living with his grand father Jagmal Singh. He also admitted that the police visited the place of incident on the next day. Bef ore arriving the police, he did not talk to his uncle and grand father. His grand father used to tell that his father was killed by Reshma Ram and his mother. He also admitted that h e w as bro ught to the Court by his grand father. He further admitted that his grand father and the

-11- uncle asked him to depo se in the court that his father w as killed by his moth er and Re shma Ram. He also admitted that he obeyed the directions of his uncle an d grand father. The incident which he witnessed, was not told to him by anybody else. He further admitted th at outside the Court, his gran d father made him understan d that he should give the statement as whatever has been made him to understand. The relevan t part of his statement is extracted as follows:

" .. ..... , #$ & $( $ " 16. On careful consideration of the stateme nt of P. W.2

Raja Ram, it clearly appears that he w as tutored by his uncle and the gra nd father. Even oth erwise, it is difficult to comprehend that in a small hut, where husband of Mst.

Shanti alongwith three children was sleeping, appella nt

Re shma Ram could indulge in sexual intercour se with

Mst. Shanti. As per Raja Ram, the hut cou ld accomm oda te tw o cots & on the ground floor, 5-7 person s could sleep.

The relevant part of the statement is extracted as follow s:

" 5- 7

"

-12- 17. The versio n given by the witness doe s not find corro bo ration from the medical evidence as w ell. The post mortem report does not disclose th at deceased died of throttling. No reason has been given as to cause of dea th.

The injuries on the person of deceased doe s not indicate that he died of homicidal death. The child witness, throughout the trial, remained and lived with the grand father and the uncle. He has admitted tutoring. The statement of the witness does not inspire confidence for more than one reaso ns. As already stated, it is improbable that in the presence of all members of the family in a small hut, a secret act of sexual intercourse could be performed.

It is significant to notice that the witness also stated tha t he could witness the alleged act in the light of the lamp. It is difficult to compreh end that such act will be performed after lightening the lamp. Thus, we are of the view that h e is a tutored witness and it is not safe to rely on his uncorr oborated so le testimo ny. There is no other evidence to connect the appellants with the crime. The trial Court has committed gross illegality in co nvicting bo th the appellants on the sole testimo ny of child witness P.W.2 Raja Ra m, w hich does not inspire confidence. 18. Consequ ently, both the appeals are allow ed. The judgment of the learned Additional Se ssions Judge No. 1,

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Bikaner dated 17.3. 2001 is set aside. Both the appellants viz; Reshma Ram and Smt. Shanti are acquitted of th e offence under Section 30 2 IPC. Th ey shall be relea sed forthwith, if not required in any other case.

(MANAK MOHTA), J. (N.N. MAT HUR), J.

RANKAWAT JK, PS


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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