Mst. Chidia Vs. State of Rajasthan - Court Judgment

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penal code - sections 302 & 309--murder and suicide--eye witness not actually seeing accused pushing children into well--conduct of witnesses is w natural when they ran to village to inform villagers instead of rushing to well for rescueing lady and children--witness taking camel to uchad for water when it is dry--held, conviction on such testimony is not proper.;the witness had not really seen mst. chidia pushing or throwing her children into the well. the conduct of these two witnesses viz., sewak ram and ram swaroop was also unnatural. instead of rushing to the well to rescue the lady and the children, they are said to have gone to the village to inform the villagers. apart from it one more fact raises doubt about sewak ram's presence there. he has stated that he was taking his camel to 'uchad' for water. richhpal singh, sho, has categorically stated that tbe 'jobad' (grazing ground) was dry and there was no water there. in view of this type of evidence we do not consider the conviction of the appellant on the testimony of sewak ram as proper.;appeal allowed. - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years - it is with the enactment of the juvenile justice act, 2000, that in section 2(k) a juvenile or child was defined to mean a child who had not completed eighteen years of a ge which was given prospective prospect - appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the juvenile justice act, 2000, came into force - juvenile act, of 2000 has been given retrospective effect by rule 12 of juvenile justice rule, 2007 - as such, accused has to be treated as juvenile under the said act. - , jagdish, nihala and guddi in a well and then herself jumped into the well. that jai singh took out the four from the well. chidia alive there at the well, sho, richhpal singh (pw 12) went to the site and conducted necessary investigation and prepared the site inspection memo and the inquest reports of the deceased children. chidia had admitted her guilt of throwing the children into the well and then herself jumping into the well in order to commit suicide. none of these witnesses have stated about her confessing the guilt of committing the murder of her children by throwing them into the well and her self a tempting to commit suicide by jumping into the well. he has not claimed to be an eye witness about the actual throwing of the children into the well by mst. chidia throwing her children into the well and herself jumping into the well to commit suicide. that ram swaroop was not in a position to see the children falling inside or being thrown into the well, it could not be possible for sewak ram to see it. apart from it, according to sewak ram when he and ram swaroop were at a distance of 2-1/2 bighas from the well, he saw mst. chidia throwing the children into the well. he could not be in a position to see whether the children had accidentally fallen into the well and the lady jumped inside to rescue them or she had pushed them into the well. he has categorically stated that he and ram swaroop went in the village and informed the villagers that chidia and fallen inside the well. chidia had fallen into the well after throwing her children. he has also stated that is told ram swaroop that the children had fallen in the well so they should run to rescue them. gbidia pushing or throwing her children into the well. instead of rushing to the well to rescue the lady and the children, they are said to have gone to the village to inform the villagers.kanta bhatnagar, j.1. this appeal is directed against the judgment dated 30th june, 1983 passed by the learned additional sessions judge, nohar, by which appellant mst. chidia was held guilty for the charges under section 302 and 309, ipc and sentenced to imprisonment for life and a fine of rs. 100/-, in default to undergo one month's rigorous imprisonment on the first count and nine months' rigorous imprisonment and a fine of rs. 100/-in default to undergo one month's rigorous imprisonment on the second count with an order that the substantive sentences shall run concurrently.2. briefly stated, the facts of the case giving rise to this appeal are that on 4-9-1982 at 9 a.m, hem raj lodged the report ex. p. 1 with richhpal singh (pw 12) sho, police station, bhadra to the effect that mst. chidia wife of ram swaroop has thrown her three children viz., jagdish, nihala and guddi in a well and then herself jumped into the well. that jai singh took out the four from the well. the three children had died and mst. chidia alive there at the well, sho, richhpal singh (pw 12) went to the site and conducted necessary investigation and prepared the site inspection memo and the inquest reports of the deceased children. he got the postmortem examination of three dead bodies of jagdish, nihala and guddi (rajbala) conducted from dr. naval kishore (pw 14). after completion of necessary investigation, chargesheet was fine in the court of munsif magistrate, nohar. the learned magistrate committed the case to the court of additional sessions judge, nohar. the learned judge charge-sheeted the appellant under sections 302 & 309, ipc and recorded her plea. she denied the charges and claimed to be tried. to substantiate its case, prosecution examined 14 witnesses in all. in her statement under section 313, cr pc the appellant denied the allegations levelled against her. no defense witness was examined. the learned additional sessions judge believed the prosecution evidence and passed the judgment under appeal. feeling dissatisfied by her conviction and sentence, mst. chidia has preferred this appeal.3. as the appellant was unrepresented. mr. b.s. rathore was appointed amicus curiae to plead on her behalf.4. we beard mr. b.s. rathore, learned amicus curiae and smt. chandra lekha, learned public prosecutor and perused the record of the case.5. the learned amicus curiae has assailed the findings of the learned trial judge on a number of grounds. regarding the eye witnesses, the contention of mr. rathore is that out of the two eye witnesses viz., sewak ram (pw 3) and ram swaroop (pw 2), the latter has been declared hostile by the prosecution and the former cannot be said to be a witness of sterling worth so as to base conviction on his sole testimony. regarding the extra-judicial confession, alleged to have been made by the appellant, the argument of the seamed amicus curiae is that the witnesses have no where stated that mst. chidia had admitted her guilt of throwing the children into the well and then herself jumping into the well in order to commit suicide. the learned public prosecutor controverting these submissions submitted that there is no reason to disbelieve the statement of sewak ram who had no enmity with mst. chidia so as to falsely implicate her in such a heinous crime.6. it may be stated at the very out set that the trial judge has not believed the testimnony of jai singh (pw 7), jag ram (pw 8), data ram (pw 10) and ram swaroop (pw 2) husband of mst. chidia, so far as the extra judicial confession is concerned and in our opinion rightly so, because these witnesses have only stated that on being asked time and again, mst. chidia told that she had committed the mistake. none of these witnesses have stated about her confessing the guilt of committing the murder of her children by throwing them into the well and her self a tempting to commit suicide by jumping into the well. ram swaroop has stated about the confession of the lady but when his attention being drawn to portion a to b of his police statement for. rule 3 he admitted to have given that version. in that portion it is mentioned that mst. chidia admitted to have committed the mistake of setting fire to the heap of grass. in view of this version, the story of the accused confessing about the guilt, goes away. so far as the eyewitnesses are concerned, ram swaroop and sewak ram both happened to be the near relatives of the husband of mst. chidia. both these witnesses have admitted that there was no quarrel in the family so as to compel mst. chidia to commit the crime. ram swaroop (pw 2) who were elder brother in relation to the husband of mst. chidia, has not supported the prosecution case at all. he has not claimed to be an eye witness about the actual throwing of the children into the well by mst. chidia rather he has stated that when he went there, the children bad already been thrown into the well. because of this type of statement, prosecution disowned the witness. sewak ram is the witnesses who has supported the prosecution case about mst. chidia throwing her children into the well and herself jumping into the well to commit suicide. according to ram swaroop sewak ram was following him. that is he was behind him. that ram swaroop was not in a position to see the children falling inside or being thrown into the well, it could not be possible for sewak ram to see it. apart from it, according to sewak ram when he and ram swaroop were at a distance of 2-1/2 bighas from the well, he saw mst. chidia throwing the children into the well. it has been admitted by him that at that time dark had set in. if it was so then no circumstances it could have been possible for sewak ram to see what exactly had happened. he could not be in a position to see whether the children had accidentally fallen into the well and the lady jumped inside to rescue them or she had pushed them into the well. as argued by the learned amicus curiae the witness does not appear to be sterling worth. he has categorically stated that he and ram swaroop went in the village and informed the villagers that chidia and fallen inside the well. he had seen the actual occurrence then in the natural course of events, he would have informed the villagers that mst. chidia had fallen into the well after throwing her children. this shows that his claim to be an eyewitness is an afterthought. he has also stated that is told ram swaroop that the children had fallen in the well so they should run to rescue them. the immediate reaction on seeing the incident must be what had been told to ram swaroop end therefore therefore there is substance in the argument of mr. rathore that the witness had not really seen mst. gbidia pushing or throwing her children into the well. the conduct of these two witnesses viz. sewak ram and ram swaroop was also unnatural. instead of rushing to the well to rescue the lady and the children, they are said to have gone to the village to inform the villagers. apart from it one more fact raises doubt about sewak ram's presence there, he has stated that he was taking his camel to 'uchad' for water. ricbhpil singh, sho, has categorically stated that the johad (grazing ground) was dry and there was no water there, in view of this type of evidence, we do not consider the conviction of the appellant on the testimony of sewak ram as proper.7. the prosecution has not brought on record any circumstance that might have led the appellant to commit the heinous crime of murdering her three children and herself attempting to commit suicide.8. in view of this circumstances, we find no justification in the con- viction of the appellant. consequently, the appeal is allowed. the conviction and sentence awarded to the appellant mst. chidia are set aside and she is acquitted of the charges. she is in jail--she will be set at liberty forthwith if not required in any other case.