Allowed

Smt.Phool Bai Jhariya v. State

Chhattisgarh HC3 Sept 2014CRA/759/2000

Case brief

AI extract

What is this about?

The High Court allowed an appeal against conviction and sentence under Section 302 IPC. The court held that conviction based solely on the delayed and uncorroborated statement of a single eyewitness was unsafe, especially given medical evidence suggesting male involvement. The appellant was acquitted.

What did the court decide?

The judgment impugned was set aside, and the appellant was acquitted of the charges. Bail bonds were continued for six months.

Smt.Phool Bai Jhariya Vs State — Murder and Culpable Homicide | Chhattisgarh HC (2014)

¶1

-.n B^'^1

¶2

iii^THi-Wsi'- cMV'IPSIgigJI'BgBWt'BIWWS?^

¶3

CRIFIINfiL APPaL N"^^^^2BOElt

¶4

vWiSQpSM^:WS3SSWSV!gr!3iSff^S

¶5

APPLICfi^TtSmt, pftoolbai<3hsriya, TTTT3rHE7 aged aboat 45 yeats., y/o Pal-tu Dhariys., \2/ R/o, ffi.llage-Oharsnipi.irs, D is tric t- Ra ^ ns dga en«: p^-y ^x r VBRSaS TStff ;- State of FI.P. through

¶6

State of FI.P. through pollce-Station pipariya, Distri.cl- Rajnadgaon.

¶7

:-'IT:;' •:<

¶8

HIGH COURT OF CHHATTISGARH AT BILASPUR

¶9

CORAM: HON'BLE SHRI YATINDRA SINGH, C.J. & HON'BLE SHRI PRITINKER DIWAKER, J

¶10

Cr.A. No. 759 of 2000

¶11

Apoellant

¶12

Smt. Phool Bai Jhariya

VERSUS

Respondent

StateofM.P.(nowCG)

Present: Shri Badruddin Khan, counsel for the appellant. Shri Ravindra Agrawal, P.L. for the respondent/State.

¶17

JUDGMENT (03.09.2014)

¶18

This appeal arises out of judgment of conviction and order of sentence dated 17.01.2000 passed by the Additional Sessions Judge, Khairagarh, Link Court Kawardha in S.T. No. 180/98 convicting the accused/appellant under Section 302 IPC and sentencing him to undergo life imprisonment with fine of Rs. 1000/- plus default stipulation.

¶19

In the present case, name of the deceased is Rukmani @ Kondhi, aged about 8 years, daughter of Ridh Ram Sahu. On 27.7.97, in between 8.00 a.m. to 2.00 p.m. dead body of the deceased was found in the kitchen garden of Vijay Sa1w which was adjacent to the house of Ridh Ram Sahu. Upon receiving information from the son of Jhumuk Sahu, Pardeshi village kotwar, lodged merg intimation Ex.P-5. Dehati Nalishi Ex.P-13 was recorded by the police and thereafter^{FIREx.P-10was} registered on 28.7.97 against unknown persons. Postmortem examination on the body of deceased was conducted on 28.7.97 by Dr. I.S.Thakur (PW-5) vide Ex.P-2 who opined that cause of death was asphyxia due to smothering and throttling and also due to head injury sustained by her. During investigation on 13.8.97 i.e. after about 17 days ofthe incident

¶20

case diary statement of one Dooj Bai (PW-12) was recorded wherein she has stated that on the date of incident after hearing the crying sound from the house of Ridh Ram she came out and when she was not able to see, she climbed the ladder and saw the accused/appellant hitting the deceased with a boulder on her head. On the basis of this statement given by Dooj Bai (PW-12) appellant Phoot Bai was made accused and charge sheet was filed under Section 302 IPC and accordingly charge was framed against her.

¶21

So as to prove the guilt of the accused/appellant, prosecution has examined 13 witnesses. Statement of the accused/appellant was also recorded under Section 313 of the Code of Criminal Procedure in which, she has categorically stated that as the report was lodged by her daughter against Anjori (PW-4) under Sections 354 and 448 IPC she has been falsely implicated because of the said enmity. This apart one defence witness has also been examined.

¶22

By the judgment impugned the Court below has convicted and sentenced the accused/appellant as mentioned in paragraph 1 of the judgment. Hence this appeal.

¶23

Contention of counsel for the appellant^isasunder:

¶24

i) That the appellant has been convicted^{sotelyonthebasisof} statement of Dooj Bai (PW-12) but the said witness is not reliable for the following reasons:

¶25

a) that her case diary statement was recorded on 13.8.97 whereas the incident is of 27.07.97.

¶26

b) it appears to be very unnatural that this witness kept silent for more than 17 days.

¶27

c) that in her court statement Dooj Bai has admitted the fact that 3-

¶28

¶29

4 times she was called by the police and she was also threatened by the police.

¶30

ii) That but for the statement of Dooj Bai (PW-12) there is no other evidence against the accused/appellant.

¶31

iii) That as per the postmortem report of the deceased there were some injuries on her private part and thus the possibility that she was murdered by some male cannot be ruled out.

¶32

On the other hand, supporting the impugned judgment it has been argued by the State counsel that the conviction of the accused/appellant is strictly in accordance with law and there is no infirmity in the same.

¶33

Heard counsel for the parties and perused the material available on record.

¶34

Ridh Ram (PW-1) -father of the deceased has stated that on the date of incident he and his wife were working in the field of one Milloo and in the noon when his wife went home, his children were crying and the elder daughter was not there and after sometime she saw the dead body of the deceased in the kitchen garden. He has stated that his wife came to him and informed that their daughter has been killed. Thereafter he called the villagers and informed them and then went along^withthemto the kitohen garden and saw his daughter lying over there. He has stated that about a year prior to the date of incident there was quarrel between him and the accused/appellant for collecting cow dung on account of which village panchayat was also convened and fine of Rs. 300/- was imposed on him. He has stated that during investigation, about 20-25 villagers were called by the police and after about 4-5 days of the incident Dooj Bai (PW-12), sole eyewitness was also called by the police and she was asked to wait in the police station. Bhagwati (PW-2) mother

¶35

of the deceased has made almost similar statement as has been made by her husband Ridh Ram (PW-1). Siya Bai (PW-3) has not stated anything against the appellant and has been declared hostile. Anjori (PW-4) - brother-in-law (Jeth) of Dooj Bai (PW-12) has stated that she asked Dooj Bai several times as to whether she knew anything about the incident but she did not disclose anything. However after some time Dooj Bai informed him that she heard some cries and that the noise of cry was of a child. He too has admitted the fact that 20-25 persons were detained by the police in the police station under suspicion including Dooj Bai. He has admitted the fact that Rajim Bai, daughter of appellant had lodged a report a report against him on which basis offence under Section 354 and 448 IPC was registered against him and aftermurder of the deceased twice he was was called by the police and detained in the police station. Dr. I.S.Thakur (PW-5) conducted postmortem examination on the body of deceased Rukmani and found following injuries on her person:

¶36

i) lacerated wound on middle of scalp measuring 2cm. x 1 cm. blood present.

¶37

ii) Ridht side face, temporal and parietal region swollen and edematous, Bluish discoloured in comparison to left side, Ridht upper eyelid swollen and blackish, Ridht upper arm, Ridht side pectoral region contusion present in left shoulder also bruised up to deltoid region.

¶38

iii) lacerated wound on the left side chin 2cm. from mid line measuring 2 cm. x 1 cm. blood present on dissection over underneath the skin.

¶39

According to him the cause of death is asphyxia due to smothering and throttling and also due to head injury. He has also stated that there was injury on the private part of her body, it was dark red clotted and blood

:^.?^'

present,^{therightlabiaminoraandmajorawereswollen} and bluish, the interior of post wall was found darkened, congested and bruised. Mohd. Farooq (PW-6)is the patwari who prepared spot map (Ex.P-3). Jagdev (PW-7) has not stated anything against the appellant and has been declared hostile. Pardesi (PW-8) is a village kotwar at whose instance merg Ex.P-5 was recorded. He is also a witness to inquest (Ex.P-7), inquest notice (Ex.P-6) and spot map (Ex.P-3). Amarpal Singh (PW-9) is the head constable who recorded rojnamcha sanha (Ex.P-8A) which is in relation to the dispute between Ridh Ram (PW-1) and grand daughter of appellant for lifting the droppings of cow dung. Dwarika Chandravanshi (PW-10) is a witness to inquest (Ex. P-7), inquest notice (Ex.P-6) and seizure of certain articles from the place of incident. Santosh Singh (PW11) has done part ofthe investigation. Dooj Bai (PW-12) - sole eyewitness to the incident has stated that on the date of incident when she was was getting ready to go to her parents house, at that time she saw accused/appellant pressing the neck of the deceased and at the same time was lifting boulder in her hand and when she asked the appellant as to why she is assaulting her she threatened her and under^thefear she left for her parents house. She has stated that after about 3 days of the incident she returned back to her house and on being asked by her brother-in-law (Jeth) Anjori (PW-4) she informed that she knew about the incident. In cross-examination she has admitted the fact that about 2025 villagers were detained by the police at police station where she too was called for 2-3 times withih 5-6 days of the incident. She has further stated that she was also threatened by the police. She has stated that kitohen garden of Ridh Ram was not visible from her house and therefore she used a ladder and then saw the incident. She has admitted the fact that after 16-17 days of the incident when she was again called by the police she disclosed the fact that she saw the incident and that she did

¶44

¶45

¶46

not disclose the same to anyone. L.K.Pandey (PW-13) is the Investigating Officer who has duly supported the prosecution case.

¶47

Mohan Singh (DW-1) has stated that on the date of incident accused/appellant was watching TV in her house and she was there from 38-8.30till11.30a.m.

¶48

rl

¶49

Close scrutiny of the evidence makes it clear that on 27.7.97, deceased Rukmani @ Kondhi was killed by someone. Case diary statement of Dooj Bai (PW-12) was recorded on 13.8.97 i.e. after about 17 days of the incident. According to the case diarystatement after hearing the crying sound of Rukmani @ Kondi, at first she thought that her mother might be beating her, after a while, she tried to see but due to the height of the wall she could not see and then she climbed the ladder, saw accused/appellant hitting the deceased with boulder on his head and thereafter inserting mud in her mouth. However in the court she has stated that she saw the accused/appellant pressing the neck of the deceased and at the same time she was carrying boulder in her hand. No explanation has been offered by this witness regarding her belated case diary statement nor the police authorities have offered any such explanation for the delay. From the statement of the witnesses it is apparent that number of villagers were suspected by the police and most of them were called to the police station again and again and they were also detained for quite sometime. Even Dooj Bai (PW-12) was also called by the police on number of occasions and detained. According to the prosecution case, she had disclosed to the police that she saw the a6;used/appellant assaulting the deceased. She has also admitted the fact that she was also threatened by the police. The evidence also reflects thatAnjori (PW-4) is the brother-in-law {jeth) of Dooj Bai (PW-12) and based on the report lodged by the daughter of appellant, case under

!^1 •I i

M ti

Section 354 and 448 IPC was registered against Anjori (PW-4). As per the medical report, the deceased appears to have been molested at first and then murdered and this could have only been done by some male and not by the accused/appellant who is a lady.

¶54

Thus, considering the entire evidence available on record, possibility of involvement of Anjori (PW-4) or any other person in the crime cannot be ruled out. Even Anjori (PW-4) has admitted the fact that on the basis of report lodged by daughter of accused/appellant, a case was registered against him. From the evidence available on record and the way the investigation has been done it will not be safe for this Court to convict the accused/appellant solely on the basis of statement of Dooj Bai (PW-12). Statement of this witness does not inspire confidence on this Court as she does not appear to be trustworthy. In the facts and circumstances of the case we are of the considered opinion that the prosecution has not been successful in proving the involvement of accused/appellant in the crime in question beyond the shadow of reasonable doubt and as such the trial court was not justified in convicting and sentencing the accused/appellant under Section 302 IPC on the basis ofevidence available on record. The accused/appellant is entitled to be acquitted ofthe charges by extending herthe benefit ofdoubt.

¶55

thl

¶56

In view of what has been discussed above, the appeal deserves to be allowed and the judgment impugned is liable to be set aside. It is done accordingly. As the accused/appellant is on bail, her bail bonds shall continue for a period of six months in view of section 437-A of the Code of

¶57

Criminal Procedure.

¶58

Sd/Pritinker Diwaker Sd/Judge Chief Justice

Smt.Phool Bai Jhariya v. State

Case brief

What is this about?

What did the court decide?

Smt.Phool Bai Jhariya v. State

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Banshi Das Vs the State of M.P.

Karmu Rathia Vs State

Rambahadur Vs the State of M.P.

Radheshyam @ Bodu Vs State

Sobran Vs the State of M.P.

Deepak Shrivastava Vs Indira Gandhi Krishi Vishwavidyalaya And Anr.