Rajasthan High Court - Jodhpur
Smt. Kanku vs State on 8 August, 2019
Bench: Sandeep Mehta, Abhay Chaturvedi
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 544/2004
Smt. Kanku wife of Bhinya Ram Gurjar resident of Pusholon Ka
Kheda Police Station Deogarh District Rajsamand. (At present
lodged in Rajsamand Jail).
----Appellant
Versus
State of Rajasthan
----Respondent
For Appellant(s) : Ms.R.R. Kanwar.
For Respondent(s) : Mr.N.S. Bhati, PP
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MR. JUSTICE ABHAY CHATURVEDI
JUDGMENT
Date of Pronouncement : 08/08/2019
Date of Reserve : 16/07/2019
Reportable
The case at hand reveals a very sad state of affairs prevailing in the Registry of this Court. The instant appeal came to be filed on behalf of the appellant in the year 2004 for assailing the judgment dated 19.5.2004 passed by learned Sessions Judge, Rajsamand in Sessions Case No.38/2003 whereby, the appellant was convicted for the offences under Section 302 I.P.C. and Section 3(2)(v) of the SC/ST (Prevention of Atrocities) Act and on both the counts, she was sentenced to life imprisonment and a fine of Rs.500/-; in default of payment of fine, to further undergo one month's rigorous imprisonment. Both the substantive sentences were ordered to run concurrently.
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(2 of 24) [CRLA-544/2004] On a perusal of the prior order-sheets, it is clear that the application for suspension of sentences preferred on behalf of the appellant was rejected by this Court on 20.7.2004. To the misfortune of the appellant, she forwarded another appeal from jail, which was delayed by 1464 days.
The file of the represented appeal No.544/2004 came to be tagged alongwith the aforesaid jail appeal which was time barred and the matter kept lingering on for condonation of the delay and finally, the jail appeal was registered as late as in the year 2019. During this entire period, the poor appellant continued to languish in jail. Surprisingly enough, even the counsel representing the appellant never made an attempt to mention the represented appeal in the court so as to get the same listed for hearing. It may be reiterated that in the present case, the Registry of the Rajasthan High Court also acted with sheer lethargy as the appeal was never listed for hearing before the Court.
These startling details came to our notice on 12.7.2019 when the jail appeal No.134/2019 came to be listed before us whereupon, we directed that the represented appeal against conviction shall be listed for hearing on 16.7.2019 whereafter, the arguments were heard.
Be that as it may. We directed the learned Public Prosecutor to summon the custody certificate of the accused appellant which has been placed on record. As per the certificate dated 16.7.2019, issued from the office of the Superintendent, Central Jail, Jaipur, the accused appellant served a total sentence of 14 years 9 months and 22 days whereafter, by effect of the recommendation dated 13.3.2019 of the State government, the convict appellant was released on permanent parole.
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(3 of 24) [CRLA-544/2004] In the backdrop of the facts and circumstances noted above, we direct that the Registry shall forthwith, conduct a physical inspection of all the pending criminal appeals and the matters shall be listed for hearing in the appropriate order of priority with preference being given to the accused whose custody period is longer.
Brief facts relevant and essential for disposal of the instant appeal are noted hereinbelow.
Ram Lal Salvi P.W.2 submitted an oral report to the S.H.O. Devgarh, District Rajsamand on 24.4.2003 (Ex.P1) at the place of the incident i.e. Village Pusalon Ka Kheda (Kakrod) alleging inter alia that in the same morning, his sons Dharmesh Kumar Salvi, aged 7 years and Prakash Chand Salvi aged 5 years had taken breakfast at home and had gone to the Rajiv Gandhi Pathshala for attending the classes at 7:30 a.m. They returned home at about 10 a.m. and went to the hand pump for taking bath where, both the boys suddenly started suffering from nausea/vomiting and suddenly collapsed. Froth started coming out of their mouths and they went into seizures. The complainant mentioned in his report that as the boys suffered seizures/fits, they were taken to the place of Kakrod Mataji for getting them treated traditionally by means of Jhaad Foonk. Dharmesh Kumar expired at the Mataji Devra. Prakash Chand was taken to the Govt. Hospital at Tal where, the doctor gave him primary treatment and then referred him to the Govt. Hospital, Bheem where also, the boy was treated, but he too could not be saved. The complainant pertinently mentioned in the report that he had no suspicion about the death of his sons.
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(4 of 24) [CRLA-544/2004] Since two young boys had suddenly died in an unnatural manner, the S.D.M. Bheem initiated an inquiry under Section 176 of the Cr.P.C. during the course whereof, statements of various witnesses were recorded. The bodies of two boys were subjected to postmortem. Their visceras were preserved and were forwarded for examination to the FSL from where, report (Ex.P33) dated 14.5.2003 was received establishing the presence of organochloro insecticide in all the organs of the boys. The S.D.M. prepared an inquiry report (Ex.P25) dated 20.5.2003 concluding that it had come to light from statements of the witnesses that Smt.Kanku Devi who was employed to prepare the Ghughari in the Rajiv Gandhi Pathshala was bearing an old enmity with the father of the two deceased boys. She mixed some poisonous substance in the Ghughari and gave the same to the children who unsuspectingly consumed the poisoned ghughari and expired thereby. Accordingly, the S.D.M. forwarded the report to the S.H.O. P.S. Devgarh with the attending documents to register a case and proceed as per law. On the basis of this inquiry report, an F.I.R. No.133/2003 (Ex.P2) came to be registered against the appellant herein at the P.S. Devgarh for the offence under Section 302 I.P.C. and Section 3(2)(v) of the SC/ST (Prevention of Atrocities) Act.
The Investigating Officer arrested the accused appellant on 23.5.2003, recorded the statements of various witnesses, effected certain recoveries during the course of investigation and proceeded to file a charge-sheet against the accused appellant for the offence under Section 302 I.P.C. and Section 3(2)(v) of the SC/ST (Prevention of Atrocities) Act.
Since the offences were sessions triable, the case was committed to the court of Sessions Judge, Rajsamand, who (Downloaded on 30/08/2019 at 01:26:26 AM) (5 of 24) [CRLA-544/2004] framed charge against the appellant for the offences under Section 302 I.P.C. and Section 3(2)(v) of SC/ST (Prevention of Atrocities) Act. The appellant pleaded not guilty and claimed trial. The prosecution examined as many as 18 witnesses and exhibited 34 documents to prove its case.
The accused, upon being questioned under Section 313 Cr.P.C. and when confronted with the circumstances appearing against her in the prosecution evidence, denied the same and claimed to have been falsely implicated. 4 witnesses were examined and 9 documents were exhibited by the defence.
After hearing the arguments advanced by the prosecution and the defence, and upon appreciating the evidence available on record, the learned Sessions Judge proceeded to convict and sentence the appellant as above by the impugned judgment dated 19.5.2004 which is assailed in these appeals.
Firstly, we proceed to discuss in brief the evidence of the prosecution witnesses.
P.W.1 Laxmi being the mother of the two deceased boys stated that her three sons viz. Ladu, Dharmesh Kumar and Prakash used to study in the Govt. School at Village Pusalon Ka Kheda. On 24.4.2003, the three boys went to the school for attending the classes at about 7 o'clock. The boys came home after consuming the ghughari. In the later part of the statement, she stated that Kanku had first distributed the ghughari to the other students and had later on brought ghughari from her home and had given the same to her sons separately. Only Prakash and Dharmesh had consumed the ghughari whereas Ladu did not eat the same because he was suffering from diarrhea and stomach ache. Ladu went back to school whereas, Prakash and Dharmesh (Downloaded on 30/08/2019 at 01:26:26 AM) (6 of 24) [CRLA-544/2004] went to the hand pump. She was daubing the floor of the house with mud and went to the hand pump for fetching water where she saw that Prakash had collapsed on the ground. She lifted him. In the meantime, her other son Dharmesh also collapsed. They took the boys to the Devra (Bheruji's temple) where both vomited. The villagers suggested that the boys should be taken to Mataji temple at Village Kakrod upon which, they took the boys there. Dharmesh expired at the Mataji temple. Then the witness returned home. Prakash Chand was taken to the Govt. Hospital Kakrod where the Nurse expressed her inability to treat him. Prakash Chand was taken to Tal Hospital from where he was referred to the Bheem Hospital. There, he too expired. Bodies of both the boys were brought back to the village. The Patwari and Nurse came to their home and advised them not to conduct the last rites because the Police and people from the administration were coming. Dayaram Gurjar, the then Sarpanch, advised them to perform the last rites. Thus, the body of Dharmesh was given a burial. The body of Prakash Chand was brought from the hospital at a little later and on the advise of Daya Ram Gurjar, it too was buried. Thereafter, the Police came and exhumed the bodies of the boys in presence of the doctor. The witness further alleged that Kanku's husband Miya Ram and her husband had gone to do labour job at Madhya Pradesh where, Miya Ram fell into a well and fractured his leg. This incident took place 1½ months prior to the death of her sons. Her husband and Miya Ram were both working at the same well. Her husband told her that Miya Ram was crippled because of the accident and that he got Miya Ram treated and spent a sum of Rs.10,000/- for this purpose. Miya Ram however could not regain full fitness. Kanku thus was disgrunted (Downloaded on 30/08/2019 at 01:26:26 AM) (7 of 24) [CRLA-544/2004] and angry at her family and used to hurl insinuations at her family members and threatened that she would take revenge. Kanku used to do the work of preparing ghughari in the school. She added poison in the ghughari and gave the same to her children. Her son Ladu told her that Kanku prepared ghughari separately at her house and gave the same to Prakash Chand and Dharmesh and on consuming the same, the boys immediately fell ill. The Police came and performed the requisite formalities of investigation. In cross-examination, the witness stated that Daya Ram Sarpanch pressurized them to bury the dead bodies. However, upon being confronted with her previous statement (Ex.D1), she admitted that it was right to say that nobody pressurized them to bury the bodies and that she did not tell the Police that Kanku prepared separate Ghughari and gave the same to her children for eating and that her boys fell ill because of consuming the ghughari. She also admitted that it was for the first time in the court that she was stating that her son Ladu told her about the incident when the Police recorded her statement, she did not express any suspicion regarding the death of her sons because she was not in her senses at that time. She added on her own that a bird ate the food vomited out by her son which was lying near the Devra and died on which they became suspicious that the ghughari might have been poisoned. She claimed that she told the Police immediately of this happening. She further admitted that her sons were studying in the school for the last 1½ to 2 years and Kanku used to prepare ghughari during the corresponding period. Kanku's husband was crippled during this entire period. She did not go to the school and make any inquiry after the death of her sons.
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(8 of 24) [CRLA-544/2004] P.W.2 Ram Lal being the father of the two deceased boys gave evidence almost on the same lines as was stated by Laxmi P.W.1. He stated that he was not present at the spot when the boys fell ill. He admitted giving the report (Ex.P1) at the Police Station. He attested various documents prepared during and after the inquest proceedings. In cross-examination, he admitted that on the fateful day, he had gone out of the house to graze the cattle even before the children left for school. He saw the boys at the place of Devra in the Village Kakrod where Dharmesh expired. To a pertinent question in cross-examination, the witness initially stated that the boys were not suffering from any illness like epilepsy but then, he admitted this fact. He admitted the omission in his Police statement that the accused Kanku brought separately cooked ghughari and gave the same to the boys for eating. He also admitted that no allegation was made by him in his police statement that Kanku threatened that she would take revenge or destroy his family.
The most important witness of the prosecution is the child witness Ladu P.W.3 aged 9 years being the brother of the deceased boys who claimed to be present at the spot during the incident. His statement is being reproduced hereinbelow verbatim so that the appreciation can be convenient:
"mDr xokg dks uke irs iwNdj mldh mez dks ns[krs gq, "kiFk ls iwoZ fuEu iz"u iwNs x;s %& 01- D;k rqe lkap vkSj >wB esa le>rs gks \ mRrj %& xokg us flj fgykdj dgk fd ugha le>rk vkSj ckn esa mls lp vkSj >wB dk iwNus ij dgk fd eSa le>rk gwaA 02- D;k rqe lksxU/k esa le>rs gks \ mRrj %& flj fgykdj dgk fd eSa ugh le>rk gwaA 03- D;k rqe jke /kje ls lgh cksyksxs ;k >wB cksyksxs \ mRrj %& lgh cksywaxkA 04- lp cksyus ls D;k gksrk gS vkSj >wB cksyus ls D;k gksrk gSA mRrj %& nks ckj iwNus ij mRrj fn;k fd lp cksyus ls iki gksrk gS vkSj >wB cksyus ls /keZ gksrk gSA vkSj rhljh ckj iwNus ij dgk >wB cksyus ls v/keZ gksrk gSA uksV %& mDr iz"u iwNus ds ckn xokg dks lksxU/k ¼"kiFk fnykbZ xbZ½ eq[; ijh{k.k }kjk yksdvfHk;kstd Jh ds-,y-tkV %& (Downloaded on 30/08/2019 at 01:26:26 AM) (9 of 24) [CRLA-544/2004] ge rhu HkkbZ gSA esjs nksuksa HkkbZ;ksa dks uke /kesZ"k vkSj izdk"k gS tks vc thfor ugha gSA ge rhuksa HkkbZ ljdkjh Ldwy esa i<+rs FksA ;g yxrs oS"kk[k dh ckr gSA vFkkZr pkj ekg igys dh ckr gSA ge rhuksa HkkbZ Ldwy x;sA eSa gkftj vnkyr eqfYte dadw dks tkurk gwaA tks Ldwy esa ?kw?kjh cukus dk dke djrh FkhA dadw us xqtjks ds lc yM+dks dks igys ?kwa?kjh ckV nhA ge rhuksa HkkbZ dadw ds ikl ?kw?kjh ysus x;s rks dadw us dgk fd rqe rhuksa HkkbZ nwj cSB tkvksA nwljs yM+dks dks ?kw?kjh ckV nh vkSj lc vius ?kj pys x;sA fQj dadw nqckjk vius ?kj x;h vkSj ogka ls ?kw?kjh ysdj vk;hA esjs dks dadw us /kkscsa esa nh Fkh vkSj esjs nwljs HkkbZ;kas dks dVksjksa esa nh FkhA dadw us eq>s dgk fd FkksM+h ?kw?kjh rw Hkh [kk ysA rks eSaus dgk esjs isV esa nnZ gS blfy, eSa ugha [kkÅaxk fQj eSus esjs ikl tks ?kw?kjh Fkh oks esjs HkkbZ;ksa dks nh FkhA esjs nksuksa HkkbZ /kesZ"k vkSj izdk"k ml ?kw?kjh dks [kkrs gq, gekjs ?kj ij x;sA ml oDr esjh eka ?kj ij vkaxu yhi jgh FkhA esjs nksuksa HkkbZ gsaMiEi ij x;s vkSj nksuksa gsaMiEi ij gh chekj gks x;sA nksuksa pDdj [kkdj uhps fxj x;sA nksuksa ds ewag esa >kx vk jgs FksA ?kw?kjh esa nokbZ Mky nh Fkh blfy, esjs HkkbZ chekj gks x;s FksA ?kw?kjh esa nokbZ dadw us feyk;h FkhA esjh eka gsaMiEi ij vk;h vkSj nsork ds LFkku ij ys x;hA fQj nksuksa dks dkdjksn ys x;s fQj ogka /kesZ"k ej x;kA dkdjksn esa ulZ us dgk fd esjs ls bykt ugha gksrk gSA fQj izdk"k dks rky ys x;sA rky ls MkWDVj lk- us dgk fd bldks Hkhe ys tkvksA Hkhe vLirky esa izdk"k Hkh ej x;kA fQj nksuksa dks ejs gq, dks ?kj ij yk;sA fQj ,d xqtZj us dgk fd Fkkusnkj vk jgk gS budks tYnh xk< nksA /kesZ"k dks xk<dj vk;s fQj ljiap xqtZj us dgk fd izdk"k dks tYnh xk< nksA nksuksa dks nQukdj ?kj vk;s rks iqfyl okys vkSj MkWDVj lk- ?kj ij vk;sA dadw ?kw?kjh vius ?kj ls cukdj ykrh FkhA ?kw?kjh ?kj ls dadw rxkjh esa yk;h FkhA ftl le; dadw us gekjs dks ?kw?kjh nh Fkh ml le; Ldwy esa dksbZ cPps ugha FksA ftjg }kjk vf/koDrk Jh ,l ,y tSu %& dadw us nokbZ ?kw?kjh esa feyk;h Fkh ;g ckr eSaus iqfyl dks crk;h FkhA eSaus isV nq[kus ds dkj.k dadw ds dgus ij fd FkksM+h rw Hkh [kk ys rks eSaus ugha [kk;h ;g ckr Hkh eSaus iqfyl dks crk;h FkhA esjh eka vkaxu yhi jgh Fkh ;g ckr Hkh eSaus iqfyl okyksa dks crk;h FkhA esjs HkkbZ;ksa dks dkdjksn] rky vkSj Hkhe ys tkus dh ckr eSaus iqfyl dks crk;h FkhA rky esa ulZ us dgk fd esjs ls bykt ugha gksxk ;g ckr Hkh eSaus iqfyl dks crk;h FkhA esjs HkkbZ;ksa dk ?kj ls gsaMiEi ij tkuk Hkh iqfyl c;kuksa esa crk;k Fkk vkSj esjs nksuksa HkkbZ;ksa ds ewag ls >kx vk jgs Fks vkSj chekj gks x;s ;g ckr Hkh eSaus iqfyl dks crk;h FkhA nksuksa HkkbZ;ksa dks ?kj ij NksM+dj Ldwy pyk x;k Fkk mlds ckn eSa ?kj ij ckjg cts vk;k FkkA ml le; esjs ?kj ij u rks esjs HkkbZ Fks vkSj u esjs ?kj ij dksbZ Hkh ugha FkkA xqtZj ljiap us dgk fd budks tYnh xk< nks ;g ckr Hkh eSaus iqfyl dks fy[kk;h FkhA ;s mijksDr lkjh ckrs iqfyl c;ku izn"kZ Mh 03 esa D;ksa ugha fy[kh gqbZ gS eSa ugha crk ldrkA eSa v/keZ esa le>rk gwa v/keZ dk eryc [kkuk gksrk gSA [kkuk dk eryc jksVh [kkukA vLirky tkuk] esjs HkkbZ dks txg&txg ysdj tkus dh ckr esjs cki us crkbZA iqu% ijh{k.k fuy"
On going through the initial part of the statement, where the trial court tried to assess the mental faculties of the witness, it is apparent that the boy had no realization about the consequences of stating truth or falsehood but despite this, the learned trial Judge administered oath to the witness who stated that 4 months earlier, he and his two brothers went to the school. He identified the accused Kanku and stated that she used to prepare ghughari at the school and alleged that Kanku first gave ghughari to all Gurjar boys and asked them to sit at a distance. The Gurjar boys consumed the ghughari and went to their homes. Kanku went (Downloaded on 30/08/2019 at 01:26:26 AM) (10 of 24) [CRLA-544/2004] back to her house and brought a separate container of ghughari and gave it to the three brothers. He took the ghughari in his hands whereas, his brothers took it in bowls. Kanku asked all the boys to consume ghughari on which Ladu stated that he was having stomach ache and saying so, he gave the ghughari to his brothers. Prakash Chand and Dharmesh and the witness started for their home while consuming the ghughari. At that time, their mother was daubing the floor of the house. His brothers fell down unconscious near the hand pump and froth started coming from their mouths. He stated that Kanku put some medicine in the ghughari due to which his brothers fell ill. Thereafter, his brothers were taken to the place of Devta where Dharmesh expired. Prakash Chand expired at the Bheem Hospital. In cross- examination, the witness was confronted with his police statement (Ex.D-3) wherein, it is mentioned that Kanku gave them the poison mixed ghughari.
P.W.4 Kanku and P.W.5 Narmada were examined as witnesses to state regarding the threats given by Kanku to the family of Ram Lal.
P.W.6 Laxman stated that 4 to 5 months earlier, when he was filling water from the hand pump, he saw a Gurgle bird lying dead near the ghughari which the boys had vomited. He further stated that the ghughari which the boys had consumed was prepared by Kanku. In cross-examination, the witness admitted that the significant facts which were stated by him in the examination-in- chief were not mentioned in his police statement (Ex.D5).
P.W.7 Bheema gave evidence almost on the same lines as Laxman P.W.6.
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(11 of 24) [CRLA-544/2004] P.W.8 Jetha Ram is a formal witness regarding seizure of a piece of Roti and a bottle at the instance of Kanku.
P.W.9 Suwa Lal stood as a witness of the Panchanama Lash of the two boys.
P.W.10 Mangi Lal was examined as a witness to state that he, Ram Lal and Miya Ram had gone to dig a well near Mandsore where Miya Ram fell down and got injured.
P.W.11 Dalu Ram was also examined as a motbir of various documents prepared during investigation and his evidence is formal in nature.
P.W.12 Dr.Satyanarayan Jeengar was a member of the Medical Board which conducted postmortem upon the dead bodies of Prakash Chand and Dharmesh Kumar and issued the post mortem reports (Ex.P15 and Ex.P16). He stated that after conducting autopsy, the visceras were collected from both the dead bodies and were handed over to the officers of Police Station Devgarh in a sealed condition to find out the exact cause of the death.
P.W.13 Heera Singh issued the caste certificate of Ram Lal. P.W.14 Bhagwati Lal was posted as Malkhala Incharge at the Police Station Devgarh on 24.4.2003. He gave evidence regarding deposition of the six glass jars forwarded by the Medical Officer Devgarh in the Malkhana in a sealed condition. Thereafter, he further received four glass jars from the veterinary doctor which were also deposited in the Malkhana. Relevant Malkhana entry was proved as Ex.P19. As per the witness, all the jars were deposited in the Malkhana by 28.4.2003 and the same were forwarded to the FSL Udaipur with the Constable Babu Lal on 3.5.2003. The witness stated that the articles deposited with (Downloaded on 30/08/2019 at 01:26:26 AM) (12 of 24) [CRLA-544/2004] him remained in the selfsame condition till the same were forwarded at the FSL. [Emphasis supplied] P.W.15 Roshan Lal was posted as a Shiksha Sahyogi in the Rajiv Gandhi Pathshala, Pusalon Ka Kheda. He claimed to be familiar with Ladu, Dharmesh and Prakash Chand sons of Ram Lal Salvi. He stated that all the boys came to school on the fateful day. The child Prakash was not enrolled in the school as he was of tender age. However, he used to come to the school with his elder brother Dharmesh. Kanku Devi was employed to prepare ghughari for the school children. On the fateful day, she prepared the ghughari, which was distributed to the students at about 9.30 in the morning. The witness stated that he had gone to the Tal Village with the school Chairperson Chitarmal. He returned at about 10.45 a.m. All the boys were running helter-skelter. Dharmesh and Prakash were not to be seen but Ladu was present in the school. The other boys who had gone to drink water from the hand pump, came back and told him that Dharmesh and Prakash had fallen ill at the hand pump. The witness went there and saw the members of their family sitting with the children who were suffering from seizures. Thereafter, the boys were taken to the sthan of Devta. Both the boys expired. In cross-examination, the witness admitted that he was not present at the school when ghughari was distributed to the children. He also admitted that the boys Dinesh and Lokesh were also studying in the school. The behaviour of Kanku was good towards the children.
P.W.16 Dr.Jitendra Vyas was a member of the Medical Board which conducted post mortem upon the bodies of the two deceased. He stated that the visceras were preserved from the two dead-bodies and were handed over to the Police. However, in (Downloaded on 30/08/2019 at 01:26:26 AM) (13 of 24) [CRLA-544/2004] cross-examination, the witness admitted that he was not aware about the date on which the viscera samples were given to the Police.
P.W.17 Ratan Lal was posted as S.H.O. P.S. Devgarh on the relevant date. He stated that Ram Lal submitted the oral report (Ex.P1) to him. The S.D.M. Bheem was informed and proceedings under Section 176 Cr.P.C. were initiated. After conducting the proceedings, he found the case to be of murder and forwarded the inquiry report (Ex.P25) alongwith the statements of Laxmi Devi, Roshan Lal, Ladu Lal, Girish, Lokesh, Ramlal and Bheema to the S.H.O. who registered an F.I.R. (Ex.P2) on the basis of thereof and commenced investigation. After concluding the investigation, the S.H.O. filed a charge-sheet against the accused in the concerned court. The witness stated that the samples were forwarded to the FSL with Constable Babu Lal. He proved various documents pertaining to the transit of samples. In cross-examination, the witness admitted that he went to the school during investigation. However, he did not record the statement of even a single student other than Ladu. The statements which were recorded by the S.D.M. were included in the file. The Investigating Officer admitted that he saw the statements of Dinesh S/o Bhagu and Lokesh S/o Bhagu recorded by the S.D.M. (which were exhibited in defence as Ex.D7 and Ex.D8). The witness explained that he did not record the statements of the other school children acting on his own wisdom. He denied the suggestion that he did not record statements of these boys because the case set up by the prosecution against Kanku was being controverted by their version. The witness denied the suggestion that these boys told him that Kanku had simultaneously given ghughari to all of them (Downloaded on 30/08/2019 at 01:26:26 AM) (14 of 24) [CRLA-544/2004] after making them to stand in one line. He admitted that he did not record the statement of Ladu or his parents on 24.4.2003. The witness denied the suggestion that the statement of Ladu was moulded so as to match the FSL report. He admitted having received the FSL report before the bottle of suspected poison was recovered from Kanku and stated that the bottle was not forwarded to the FSL for examination. The witness asserted that he forwarded the samples to the FSL with Constable Babu Lal on 30.4.2003.
P.W.18 Babu Lal Constable stated that he was posted at the Police Station Devgarh on 3.5.2003. On that day, Bhagwati Lal Malkhana Incharge gave him the samples of the articles seized during investigation of F.I.R. No.133/2003 and Mrig No.4/2003 for being carried to the FSL Udaipur in a sealed condition. The witness stated that he carried the samples to Udaipur and deposited the same at the FSL in the selfsame condition. He proved the forwarding letters (Ex.P30) and (Ex.P31) and the receipt (Ex.P32). The witness admitted in his cross-examination that prior to carrying the samples on 3.5.2003, he had earlier carried them on 30.4.2003 but as an objection was marked at the S.P. Office, Udaipur, he brought the same back to the Police Station. Thereafter, he carried the same back on 3.5.2003. He admitted that the particulars of the objections marked at the S.P. Office were not availale on the file.
Smt.R.R.Kanwar Advocate representing the appellant vehemently and fervently urged that the entire prosecution case is false and fabricated. There is no material on the record of the case to satisfy the court that the appellant gave the poison mixed ghughari to the two boys. The prosecution theory that the boys (Downloaded on 30/08/2019 at 01:26:26 AM) (15 of 24) [CRLA-544/2004] were given poisoned ghughari by the appellant in order to wreak vengeance is absolutely false, flimsy and frivolous. The husband of the accused appellant got injured long back while working in a well and there was no cause for her to seek revenge with Ram Lal's family. She further urged that the statement of the star prosecution witness i.e. the child Ladu is absolutely wavering, unconvincing, unreliable and unworthy of credence. When the trial court tried to assess the mental capability of the boy, he could not properly understand the meaning of truth, falsehood and sin. The trial Judge virtually goaded the boy into giving a suitable reply on this aspect. She urged that had there been any truth in the prosecution theory that the accused Kanku gave separately cooked ghughari mixed with poison to Prakash and Dharmesh, which they consumed, then Ladu would have shared this fact immediately with his parents because, he claimed personal knowledge of the fact that his brothers consumed the ghughari, fell ill and expired soon thereafter. If he had stated anything of the sort to his parents, then this would have lodged a prompt F.I.R. However, he did not say anything of the sort to his parents and his statement to this effect was recorded by the S.D.M. for the first time on 9.5.2003 i.e. after more than 15 days of the incident. She contended that the delay in disclosure of the sequence of events makes the testimony of Ladu doubtful. She further contended that the FSL report Ex.P33 is inadmissible in evidence and has no sanctity whatsoever because the prosecution did not lead proper link evidence so as to prove that the viscera samples remained in the selfsame sealed condition right from the date of seizure till the same were forwarded to the FSL for comparison. In this regard, she referred to the statement of Babu Lal, the carrier Constable, (Downloaded on 30/08/2019 at 01:26:26 AM) (16 of 24) [CRLA-544/2004] who admitted in his evidence that initially, he had carried the samples to the S.P. Office on 30.4.2003 where some objections were marked upon which, he brought the samples back to the police station and carried the same back to the S.P. Office on 3.5.2003. She urged that the Malkhana register entry (Ex.P19) does not bear any details regarding transmission of samples on 30.4.2003. Smt.R.R.Kanwar further submitted that the finding recorded by the trial court in the impugned judgment that the appellant gave the poisoned ghughari to the two boys to wreak vengeance is absolutely far fetched and conjectural. She drew the Court's attention to the statements of P.W.1 Laxmi and P.W.2 Ram Lal and submitted that neither of these two witnesses, gave out the estimated date on which, Ladu told them that Prakash Chand and Dharmesh had consumed the ghughari which Kanku provided to them separately. Ram Lal alleged in his statement that Kanku used to give threats that she would wreak vengeance with his family. Smt.Kanwar urged that if at all, there was any truth in this allegation then the complainant would not have lodged the report of having no suspicion regarding the death of his sons. She further urged that there is no reason to discard the evidence of the defence witnesses Dinesh D.W.1, Anita D.W.2, Prabhu Lal D.W.3, Ladu Lal D.W.4 all of whom stated that Kanku gave the same ghughari to all school children on the fateful day. On these grounds, Smt.R.R.Kanwar submitted that the findings recorded by the trial court in the impugned judgment while convicting the appellant are perverse, contrary to facts and illegal; and the impugned judgment deserves to be set aside and the accused appellant is entitled to an acquittal.
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Per contra, learned Public Prosecutor vehemently and
fervently opposed the submissions advanced by the learned counsel for the appellant. He urged that there is no cause to doubt or discard the evidence of child witness Ladu P.W.3, who categorically stated that he and his two brothers Dharmesh and Prakash went to the school together on the fateful day. Kanku who was assigned the job of preparing the ghughari, gave the first lot of ghughari to the Gurjar boys. When the three brothers went to take the ghughari, Kanku asked them to sit separately and wait. She went back to her home, brought ghughari in a separate container and gave the same to the three brothers for consuming. Ladu was having stomach ache and thus, he did not consume the ghughari. His two brothers Dhramesh and Prakash Chand unfortunately consumed the ghughari and immediately started showing symptoms of poisoning. His parents, being illiterate villagers, mistook these symptoms to be of affliction by the spirits etc. and thus, took them to the Devra. He further urged that the FSL report (Ex.P33) conclusively establishes that the visceras collected from the dead bodies of the two boys gave positive test for the presence of organochloro insecticide and hence, as per the learned Public Prosecutor, there is clinching evidence on record to establish that the appellant, acted out of revenge and gave the poisoned ghughari to the two boys who unknowingly consumed the same and expired as a result thereof. He thus implored the Court to dismiss the appeal and affirm the impugned judgment and conviction of the appellant.
We have given our thoughtful consideration to the arguments advanced at the Bar and have carefully gone through the record. (Downloaded on 30/08/2019 at 01:26:26 AM)
(18 of 24) [CRLA-544/2004] The incident at hand took place on 24.4.2003. As stated above, Ram Lal father of the two boys Dharmesh and Prakash Chand lodged the report (Ex.P1) wherein he categorically mentioned that he had no suspicion regarding the death of his sons. Though of course the prosecution has later on, tried to portray that this report was instigated and stage managed by Daya Ram Gurjar, Sarpanch of the village to favour the appellant but we are not satisfied with the said allegation of the prosecution. Ram Lal cast a categoric aspersion in his sworn testimony that Kanku used to threaten and hurl insinuations that she would destroy his family because she held him responsible for her husband's crippling in an accident. If at all, there was an iota of truth in this allegation, then the sudden demise of the boys by symptoms resembling poisoning would definitely create a suspicion in the mind of the informant and he would not have lodged the oral report (Ex.P1) without casting a doubt on anyone. In the inquiry under Section 176 Cr.P.C. conducted by the S.D.M., the statements of various witnesses including Ram Lal, Laxman Ram, Bheema and Ladu Ram were recorded in which the appellant was arraigned as the murderer after a significant delay.
The best possible evidence available to the prosecution for proving the guilt of the accused is that of the child witness Ladu P.W.3. His statement was recorded under Section 176 Cr.P.C. on 9.5.2003 by the S.D.M. during the course of the inquiry and for the first time, it was portrayed in this statement that the accused appellant gave separately prepared ghughari to the two boys, who developed the symptoms of poisoning immediately on consuming the same. The S.D.M. who conducted the inquiry and issued the inquiry report (Ex.25) was not examined by the prosecution in (Downloaded on 30/08/2019 at 01:26:26 AM) (19 of 24) [CRLA-544/2004] evidence. It is quite possible that the S.D.M. commenced his inquiry belatedly but, had there been any truth in the allegation of the parents of the boys (Laxmi and Ram Lal) that they knew that Kanku prepared separate ghughari; mixed poison in the same and gave it to their sons for eating, then it is unbelievable that they would keep silent for almost 15 days and not divulge this significant sequence of events to the authorities more-so when they strongly claimed that the accused was bearing an animosity with them. Thus, the delay in disclosure of these material facts to the police or the administrative authority, brings the prosecution case under a scanner.
Thus, we proceed to examine the evidence of Ladu P.W.3 carefully and closely to find out and assess his evidentiary worth His statement has been reproduced supra. The trial judge put a question to the witness as to whether he understood the meaning of truth and falsehood. To this, the witness initially replied in the negative. Later on, the witness stated that he understood the meaning of truth and falsehood. The witness was asked whether he understood the meaning of oath to which, he answered in the negative. Thereafter, the Court put a question to the witness whether he would state truth or false in the name of Lord Ram. To this, the witness stated that he would state the truth. The court asked the witness as to what would happen on speaking the truth or on speaking a lie and the question was repeated whereafter, the witness stated that speaking the truth would result into "sin" whereas, speaking a lie resulted into "dharma".
The question put to the witness during his evidence and the answers given by him thereto, clearly portray that the child was not mature enough to understand the sanctity of 'truth', (Downloaded on 30/08/2019 at 01:26:26 AM) (20 of 24) [CRLA-544/2004] 'falsehood' and 'oath'. Despite this evident lack of maturity shown by the child, the court proceeded to put him on oath. The witness of course gave out a version in his examination-in-chief, which supports the prosecution case. However, the last question which was put to the witness in the cross-examination was whether he understands the meaning of "v/keZ" to which he replied that it means "[kkuk" i.e. to eat food. Evidently thus, the child was not mature that he could be expected to give a reliable deposition and a genuine doubt is created in the Court's mind that the child witness might have been tutored to give the statement.
If at all, the evidence of Ladu is to be given any credence, the prosecution would have to provide strong corroboration to make his evidence reliable enough so as to affirm the impugned judgment. The Investigating Officer Shri Ratan Lal (P.W.17) admitted in his cross-examination that he did not examine any other child studying in the school during the course of investigation. It may be stated here that the break time in the school is common and obviously the ghughari was distributed by Kanku to all the children at around 9:30 a.m. If at all, there was any anomaly in the conduct of Kanku while distributing the ghughari amongst the children, this fact would not have escaped the notice of other students as well. Thus, for providing corroboration to the evidence of the child witness Ladu, the prosecution could have made an endeavour of examining the other children who were studying in the same school along with the two deceased and the witness Ladu. On the contrary, the defence examined these witnesses as Dinesh D.W.1, Anita D.W.2, Prabhu Lal D.W.3, Ladu Lal D.W.4 and all the children gave clinching evidence that Kanku distributed the ghughari to all the (Downloaded on 30/08/2019 at 01:26:26 AM) (21 of 24) [CRLA-544/2004] children simultaneously. Thus, rather than getting corroboration from independent sources, the testimony of Ladu is contradicted by the statement of the other school children who were admittedly present when the distribution of ghughari was done by Kanku.
Hon'ble the Supreme Court in the case of Digamber Vaishnav & Ors. Vs. State of Chhattisgarh reported in (2019)4 SCC 522 dealt with in detail, the issue regarding reliability of testimony of a child witness and held as below:
"21. The case of the prosecution is mainly dependent on the testimony of Chandni, the child witness, who was examined as PW-8. Section 118 of the Evidence Act governs competence of the persons to testify which also includes a child witness. Evidence of the child witness and its credibility could depend upon the facts and circumstances of each case. There is no Rule of practice that in every case the evidence of a child witness has to be corroborated by other evidence before a conviction can be allowed to stand but as a prudence, the court always finds it desirable to seek corroboration to such evidence from other reliable evidence placed on record. Only precaution which the court has to bear in mind while assessing the evidence of a child witness is that witness must be a reliable one.
22. This Court has consistently held that evidence of a child witness must be evaluated carefully as the child may be swayed by what others tell him and he is an easy prey to tutoring. Therefore, the evidence of a child witness must find adequate corroboration before it can be relied upon. It is more a Rule of practical wisdom than law."
On applying the principles aforesaid to the case at hand, we are of the firm view that the evidence of the child witness Ladu is fraught with inconsistency and contradictions. The rank silence of the witness for 15 days and his failure to tell his parents that his brothers consumed ghughari at the school immediately whereafter, they fell ill, creates a great doubt as to whether the witness actually saw the incident with his own eyes. Furthermore, as we have concluded that the child witness was not having the full mental capability of giving a coherent deposition, otherwise also, it would be unsafe to rely upon his testimony. (Downloaded on 30/08/2019 at 01:26:26 AM)
(22 of 24) [CRLA-544/2004] One possible corroboration to the statement of Ladu could be in form of the FSL Report (Ex.P33). For this purpose, proper evidence supported by documents would be required to satisfy the court that the visceras collected from the bodies of the deceased were kept in the selfsame sealed condition right from the date of collection till they reached the FSL.
The Malkhana Incharge Bhagwati Lal P.W.14 stated that he received the sealed articles of this case from 24.4.2003 to 28.4.2003 and handed the same over to Babu Lal Constable on 3.5.2003.
Babu Lal, upon being examined in evidence as P.W.18 stated in his examination-in-chief that the articles of the case were handed over to him by Bhagwati Lal Malkhana Incharge on 3.5.2003 in a sealed condition and that he deposited the same with the FSL, Udaipur in the selfsame condition. However, in cross-examination, the witness was confronted with the forwarding letter (Ex.P30) issued from the Police Station on 30.4.2003 upon which, he admitted that he had earlier carried the Malkhana articles of the case to the S.P. Office on 30.4.2003 where objections were raised. He brought the articles back to the Police Station and redeposited the same at the Police Station. He admitted that details of the objections raised at the S.P. Office were not available on the file. On examining the Malkhana register (Ex.P19), it is clear that there is no reference therein regarding the earlier transmission of the samples on 30.4.2003. In this background, there is a serious discrepancy in the evidence of the prosecution regarding the safe keeping of the Malkhana articles and thus, the FSL report (Ex.P33) becomes redundant and cannot be read in evidence.
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Doctor Satyanarayan Jeengar P.W.12 who conducted
postmortem upon the bodies of the two boys categorically stated in his evidence that insecticide poisons have a very strong foul odour and nobody can consume the same directly or unknowingly and if anybody consumed insecticide mixed food even by mistake, he would spit it out immediately. Thus, a serious doubt is created as to whether the boys could have been deceived into eating the insecticide mixed food.
In wake of the discussion made hereinabove, we are of the opinion that the prosecution failed to lead proper, cogent and clinching evidence to bring home the charges against the appellant. The evidence of the so-called eye-witness Ladu is far from convincing and the same does not get corroborated from any other reliable piece of evidence. The students of the same school who were examined by the defence categorically refuted the prosecution case.
Even if we ignore the same, then also, as we have held that the evidence led by the prosecution is not convincing enough, we are not inclined to place implicit reliance thereupon. In wake of the discussion made hereinabove, we hold that the impugned judgment does not stand to scrutiny.
As an upshot, the appeal deserves to be and is hereby allowed. The impugned judgment dated 19.5.2004 passed by learned Sessions Judge, Rajsamand in Sessions Case No.38/2003 is hereby quashed and set aside. The accused appellant is acquitted of all the charges.
Considering the fact that the two young sons of Ram Lal and Laxmi died unnaturally, we forward the matter to the District Legal Services Authority, Rajsamand for grant of appropriate (Downloaded on 30/08/2019 at 01:26:26 AM) (24 of 24) [CRLA-544/2004] compensation to the family members under the Victims Compensation Scheme.
At this stage, it may be noted here that the appellant has already been granted permanent parole and is not in custody. The bail bonds if any submitted by her for being released on permanent parole are discharged. In the peculiar facts noted above, the accused appellant need not be required to furnish the bonds under Section 437-A CrPC.
(ABHAY CHATURVEDI),J (SANDEEP MEHTA),J
/tarun goyal/
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