Delhi District Court
State vs . Sheela on 18 October, 2011
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGEII (NORTHWEST): ROHINI COURTS: DELHI
Sessions Case No. 17/2011
Unique Case ID: 02404R0172062011
State Vs. Sheela
W/o Raj Kumar
R/o House No. A2/164,
JJ Colony, Bhalaswa Diary, Delhi.
Also at:
Village Baliyana, PS Sapla, Distt.
Rohtak, Haryana.
(Convicted)
FIR No. : 71/2011
Under Section : 364/307 Indian penal Code.
Police Station : Bhalaswa Dairy
Date of committal to Sessions Court : 6.7.2011
Judgment reserved on : 5.10.2011
Judgment pronounced on : 13.10.2011
JUDGMENT
Brief Facts:
As per the allegations, on 23/24.4.2011 in between 9:45 PM and 10:00 PM at the back of House No. A2/167, JJ Colony Bhalaswa Dairy the accused Sheela kidnapped the child Ankush aged State Vs. Sheela, FIR No. 71/11, PS Bhalaswa Dairy Page 1 of 27 about one year in order that he may be murdered or may be so disposed off in order to give "Bali" and drowned the child in the water in an attempt to kill him in order to give "Bali". Case of prosecution in brief:
The case of the prosecution in brief is that on 23.04.2011 on the receipt of DD No.59B SI Rajender alongwith Ct. Satish reached at A2, JJ Colony, Bhalsawa Dairy and found a crowd gathered in front of the house No. 164/A2, JJ Colony, Bhalsawa, Delhi, who had also caught hold one lady whose name was known as Sheela. He made inquiries and came to know that Sheela was apprehended by Kamlesh and Daya Ram and a child was recovered from her. SI Rajender recorded the statement of Kamlesh and prepared the rukka and got the FIR registered through Ct. Satish. The complainant Kamlesh told the police that on the night of 23/24.04.2011 she had come to visit her parents at Nihar Vihar and at 9:45 to 10.00 PM Sheela who was previously known to her and who used to do tantramantra, came to her house on the pretext that she wanted to note down the number of her brother from the wall and at that time she was wearing a red coloured salwar suit. According to the complainant Smt. Kamlesh she also told the police that at that time she was having her son namely Ankush aged about one year with her and she left her son at the door and went to toilet and after State Vs. Sheela, FIR No. 71/11, PS Bhalaswa Dairy Page 2 of 27 45 minutes when she came back, she found both her son Ankush and Sheela missing. The complainant thereafter went in the street in search of her child and saw Sheela running towards her house and entered her house and at the same time she found Daya Ram on along with her child whose clothes were wet with water and handed over the child to her. She further told that police that Daya Ram informed her that her son was lying in the water he took the child out of the water. Smt. Kamlesh also told the police that Daya Ram had informed her that one lady wearing the red suit who was staying opposite her house had thrown her son in the muddy water from where he had picked up the child. After recording the FIR, the accused Sheela who was already apprehended by Kamlesh and Daya Ram was arrested and after completing the investigations, the FIR was filed in the court.
CHARGE:
Charge under Section 364/307 Indian Penal Code has been framed against the accused Sheela to which she pleaded not guilty and claimed trial.
EVIDENCE:
In order to discharge the onus upon them, the prosecution has examined as many as nine witnesses:
State Vs. Sheela, FIR No. 71/11, PS Bhalaswa Dairy Page 3 of 27 Public Witnesses:
PW3 Daya Ram has deposed that on 23.04.2011 he returned home from work at about 9:4510 PM and when he was parking his cycle, there was a pit on the east side of his house with muddy water in the pit where he found a child in the mud. According to him he took out the child and got him bathed and at the same time the mother of that child came there who identified his child and he thereafter handed over the child to her. According to him he did not see any other person with the child nor he is aware as to who threw the child in the pit.
Ld. APP with due permission of the court put leading questions to the witness as he was not giving the proper and complete details. The witness has denied the contents of his earlier statement made by him to the police which is Ex.PW3/A. He has denied the suggestion that he pulled the child out of water and found its mouth filled with water which he had pumped out and has voluntarily stated that the body of child was just covered with muddy water but there was no water inside his mouth. He has admitted that the accused Sheela resides in the same area in the gali next to his gali and has voluntarily added that Sheela is residing on rent. The witness has not been cross examined on behalf of the accused.
State Vs. Sheela, FIR No. 71/11, PS Bhalaswa Dairy Page 4 of 27
PW4 Smt. Kamlesh has deposed that her parents are residing at A2/167, JJ colony, Bhalswa Dairy, Delhi and on the night of 23/24.04.2011 she had come to meet her parents at Nihal Vihar and at about 10 PM the accused Sheela whom the witness has correctly identified as residing in the same street, knocked the door of her house on which she opened the same. According to the witness, the accused Sheela who was known to her previously as a neighbour was wearing red colored salwar suit at that time. The witness has deposed when she opened the door the accused Sheela told her that she was to note down the phone number of his brother from the wall of their house which she permitted. According to the witness, she was having her son namely Ankush who was aged about one year at that time and she left her son at the door and went to toilet but when she came back within 23 minutes at the door and she found her son Ankush missing and the accused Sheela was also not there. The witness has deposed that she started weeping and went in the street in search of her child and found one uncle with her child and she identified her son Ankush whose clothes were wet. Witness has deposed that she received her son from the said person who informed her that her son was lying in the water and he took out him from the water and by that time public gathered in the street and some public person called the police and police came at their house. According to the witness, the uncle who brought her son informed State Vs. Sheela, FIR No. 71/11, PS Bhalaswa Dairy Page 5 of 27 her that one lady wearing the red suit who is staying opposite her house had thrown her son in the muddy water whose name was Sheela. She has identified her statement made to the police which is Ex.PW4/A. According to the witness, the accused Sheela was arrested by the police vide memo Ex.PW2/A. She has deposed that her child was handed over to her by the police vide memo of handing over the child which is Ex.PW4/E. In her cross examination by Ld. defence counsel, the witness is unable to to tell the details of the other family members of the accused and has explained that she is married for the last 1314 years and she is residing at her matrimonial house whereas Sheela used to reside on rent initially in front of her parents house and she later shifted to another gali which was how she knew her. According to her a large number of persons were present at the spot and she does not recollect if the police had also made inquiries from other persons. She has deposed that at the time of the incident, her parents were also at home at that time and voluntarily added that they were outside the gate as there are two doors opening inside her house. On being asked if she had seen the accused Sheela lifting and taking the child, the witness has deposed that only she and Sheela were present at the spot and there was no body else at that time. She has admitted that the house of her parents is constructed on about 20 sq. yards property and there are about 1015 houses of the same size in her gali State Vs. Sheela, FIR No. 71/11, PS Bhalaswa Dairy Page 6 of 27 itself. She admits that she did not actually see Sheela taking away her child and voluntarily added that it was only the accused who was with her when she left the child. She further admits that she did not see the child being thrown into the water and has voluntarily added that she was crying at that time and she only saw Daya Ram uncle bringing the child and at that time the child was smudged with muddy water. According to her, the medical examination of her child was also not conducted and voluntarily added that her child was absolutely fine at that time. According to the witness she had asked her mother after the incident why Sheela was permitted inside the house and her mother told her that she (Sheela) was on visiting terms and she (mother) did not know the accused Sheela would do such a thing. She has denied the suggestion that her parents had no money when she demanded the same from them and they had asked financial help from Sheela who often financially helped them and since her parents had not returned the earlier amount Sheela refused and therefore she falsely implicated him.
PW5 Saurabh has deposed that he is doing private job and on 23.04.2011 he and his friend Imran were coming back to their house and when they reached at main road A3 Block Bhalsawa Dairy at about 10.00 PM, they found one lady who was wearing red color salwar suit was going after throwing something in the muddy water in a pit. According to him, he got suspicious and he along with State Vs. Sheela, FIR No. 71/11, PS Bhalaswa Dairy Page 7 of 27 Imran went near the pit and found one Daya Ram resident of the same area was also present there who saw carefully in the water as to what was thrown by that lady and Daya Ram entered in the pit and took out a small child from the water. According to the witness, when Daya Ram was taking the child towards the street, he (witness) and Imran also followed him and the lady who had thrown the child in the water had gone towards the street. Witness has further deposed that he, Imran and Sh. Daya Ram also went towards the same street and when they reached in the street the mother of the child whose name was known as Kamlesh met them who identified her child and thereafter Kamlesh and Daya Ram apprehended the lady who had thrown the child in the water and thereafter someone informed the police and police came to the spot. Witness has identified the accused Sheela in the court.
In his cross examination the witness has deposed that he is not known to Sheela and saw her for the first time on the date of the incident and he was not even aware if she (Sheela) was residing in the same area. Witness has deposed that he is known to the family of Kamlesh for the last 34 years and has voluntarily added that father of Kamlesh who is known to him used to have a welding shop in the same area and Kamlesh used to visit her father and that is how he had seen her but she is personally known to him. Witness has denied the suggestion that there is no light in the area and the place State Vs. Sheela, FIR No. 71/11, PS Bhalaswa Dairy Page 8 of 27 where the child was allegedly thrown is totally dark and has voluntarily added that there is an electric pole in front of house of Daya Ram uncle (PW3) from where there is sufficient light and there is also a school in front of the place where there was a water puddle where flood light is installed and therefore there was sufficient light. The witness has deposed that the police had interrogated the Daya Ram uncle who had lifted the child in his presence and recorded the statements of many persons including myself in the same area on the road situated near the spot of the incident. He has denied the suggestion that since he is known to the father of Kamlesh, therefore he has deposed at his instance and the entire story has been concocted.
PW6 Imran has deposed that he is doing private job and on 23.04.2011 he along with his friend Saurabh were coming back to their house from the work and they were coming via A3 Block, Main Road, Bhalsawa Dairy and reached behind A2 Block at about 10.00 PM, they found one lady who was wearing red coloured salwar suit was going after throwing something in the muddy water in a pit.
He has deposed that he got suspicious and he along with Saurabh went near the pit and found one Daya Ram resident of A2 Block of the same area was also present there who saw carefully in the water as to what was thrown by that lady and Daya Ram entered in the pit and took out a small child from the water. According to him, when State Vs. Sheela, FIR No. 71/11, PS Bhalaswa Dairy Page 9 of 27 Daya Ram was taking the child towards the street, he and Saurabh also followed him and the lady who had thrown the child in the water had gone towards the street and he along with Saurabh and Daya Ram also went towards the same street. According to him, when they reached in the street the mother of the child whose name was known as Kamlesh met them who identified her child and thereafter Kamlesh and Daya Ram apprehended the lady who had entered in her house immediately after throwing the child in the water. He has correctly identified the accused in the court.
In his cross examination by Ld. defence counsel the witness has deposed that he is residing the area for the last nineten years and he is not known to Sheela previously and had seen her for the first time on the date of the incident and he was not even aware if she was residing in the same area and has voluntarily added that after the incident he came to know that she is residing in the same area. He has deposed hat he was not known to Kamlesh previously nor he had ever seen her or her child but he know her father since last 45 years as Dharmender the brother of Kamlesh is his friend. According to him the police had recorded his statement and he did not see them recording statement of any other person. He has also stated that at the time of the incident the child was totally smudged with muddy water (kichar) and Daya Ram had pumped muddy water out of the mouth of the child. He has denied the suggestion that the State Vs. Sheela, FIR No. 71/11, PS Bhalaswa Dairy Page 10 of 27 clothes of the child was not smudged with muddy water and the Daya Ram had not pumped any muddy water from the mouth of the child as nothing of this kind had happened and it is for this reason that he had not mention this fact to the police in his statement U/S 161 Cr. P.C. which is EX PW 6/DX1.
Police / Official Witnesses:
PW1 HC Jagat Singh has proved the registration of the FIR copy of which is Ex.PW1/A and the endorsement made by him on the rukka which is Ex.PW1/B. He has not been cross examined on behalf of the accused.
PW2 L/Ct. Munni is the witnesses in whose presence the accused Sheela was arrested on 24.04.2011 vide memo Ex.PW2/A by the investigating officer SI Rajender Singh from A2 JJ Colony, Bhalswa Dairy who was having a small child aged about one year. According to her she conducted personal search of accused vide memo Ex.PW2/B and the clothes of the accused Sheela were converted into parcel and sealed with the seal of RS and seized vide memo Ex.PW2/C. She has deposed that the child was recovered from accused Sheela and was taken into possession vide memo Ex.PW2/D. The witness has also deposed that accused Sheela took them at the place where she had tried to drown the child in the water by pointing out the same to them on which the IO prepared memo to State Vs. Sheela, FIR No. 71/11, PS Bhalaswa Dairy Page 11 of 27 this effect and same is Ex.PW2/E. She has correctly identified the accused Sheela and the case property i.e. one red colored salwar, red color shirt and one printed blue and black print dupatta as the same as taken into possession by the IO which are Ex.P1 collectively.
In her cross examination by Ld. defence counsel the witness has deposed that due to lapse of time she does not remember whether the child was taken from the possession of Kamlesh or the accused Sheela. According to the witness, in her presence neither the medical examination of the child was got conducted nor his clothes were taken into possession. She has denied the suggestion that there was no water at the place shown by the accused or that she was not present there or that she has been cited as a witness in this case by the investigating officer later on.
PW7 HC Himmat Singh was posted as MHC (M) on 24.4.2011 at Police Station Bhalaswa Dairy and has made entry regarding deposit of clothes by SI Rajender vide entry No. 218 in Register No. 19 copy of which is Ex.PW7/A. He has not been cross examined on behalf of the accused.
PW8 Ct. Satish has accompanied the IO on 24.4.2011 and reached the spot where the accused Sheela was apprehended by Kamlesh and Daya Ram and a child was recovered from the accused. According to the witness the child was handed over to the mother and the accused was arrested and personally searched. Witness has State Vs. Sheela, FIR No. 71/11, PS Bhalaswa Dairy Page 12 of 27 identified the accused in the court.
In her cross examination by Ld. defence counsel the witness has deposed that no separate departure entry was made while leaving the police station as they had gone on call. He has deposed that they reached the spot at 11:30 PM and at that time there were about 100 public persons present there. According to the witness the accused was wearing red coloured salwar at that time.
PW9 SI Rajender has deposed that on 23.04.2011 on the receipt of DD No. 59B Ex.PW9/D he along with Ct. Satish reached at A2, JJ Colony, Bhalsawa Dairy and when reached there they found a crowd gathered in front of the house No. 164/A2, JJ Colony, Bhalsawa, Delhi and the public persons had already caught hold one lady whose name was known as Sheela later on. According to him, he made inquiries and came to know that the accused Sheela was apprehended by Kamlesh and Daya Ram and a child was recovered from the accused. He recorded the statement of Kamlesh which is Ex.PW4/A, prepared the rukka Ex.PW9/A and got the FIR registered and accused Sheela was arrested in this case vide memo Ex.PW2/A and personally searched by lady Ct. Munni vide memo Ex.PW2/B. He also recorded disclosure statement of accused which is Ex.PW4/F and took the child into possession vide memo Ex.PW2/D. The clothes i.e. salwar suit worn by the accused Sheela was got changed and they converted the red salwar suit into parcel State Vs. Sheela, FIR No. 71/11, PS Bhalaswa Dairy Page 13 of 27 and sealed the same with the seal of RS which was taken into possession vide seizure memo Ex.PW2/C. He also prepared the memo of pointing out at the instance of accused which is Ex.PW9/B and accused Sheela had also shown the place from where she had lifted the child on which he prepared memo of pointing out to this effect which is Ex.PW2/E. Thereafter, he prepared the site plan at the instance of Kamlesh vide Ex.PW9/C. He has correctly identified the accused as well as the case property Ex.P1 in the court.
In his cross examination by Ld. defence counsel, the witness has deposed that he did not seized the clothes of the child and has voluntarily added that the mother of the child refused to hand over the clothes stating that he was her first child and she will not hand over his clothes. According tom him medical examination of the child was not conducted as the the child was alright. He has deposed that the mother of the child told him that the child had been cleaned and bathed as soon as it was handed over to her by Daya Ram. Witness has deposed that they had carried out the search of the house of the Sheela but could not find any thing suspicious relating to "tantar mantra". He admits that even in the personal search nothing suspicious was recovered and it was only on the basis of the statement of the witnesses that there were allegations of "tantar mantra" but there was no material recovered to connect her with the same. Witness has admitted that there was no independent witness State Vs. Sheela, FIR No. 71/11, PS Bhalaswa Dairy Page 14 of 27 from the area who came forward to make a similar allegation against the accused and has voluntarily added that many persons were talking about it but when he asked them to make statement they refused. Witness has denied the suggestion that the accused did not make any disclosure statement and he had recorded it of his own. He admits that there is no recovery pursuant to the aforesaid disclosure. He has denied the suggestion that no documentations were done at the spot and he had prepared all the documents and statements while sitting in the police station.
STATEMENT OF ACCUSED & DEFENCE EVIDENCE:
After completing the prosecution evidence, statement of accused was recorded under Section 313 Code of Criminal Procedure in which all the incriminating evidence / material were put to her which she has denied. According to the accused when she asked for her money, the complainant threatened her to implicate her and later the complainant in connivance with the police implicated her in this case. However, she has not examined any witness in defence.
FINDINGS:
I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Defence Counsel appearing on State Vs. Sheela, FIR No. 71/11, PS Bhalaswa Dairy Page 15 of 27 behalf of the accused. I have also considered the testimonies of the various witnesses examined by the prosecution and have gone through the written memorandum of arguments filed by the parties. Identity of the accused:
The accused Sheela was apprehended after few hours of the incident. Her description has been given in the First Information Report given to the police and in the court she has been duly identified by the mother of the child namely Kamlesh (PW4) who was previously known to the accused residing in the same area where the maternal grand parents of the child reside. She has also been identified by PW5 Saurabh and PW6 Imran who are the eye witnesses of the incident and had seen the accused Sheela throwing the child in the muddy water in a pit. This being the background, I hold that the eye witnesses have correctly identified the accused and therefore the identity of the accused Sheela stands established. Kidnapping of the Child The allegations against the accused Sheela is of kidnapping of child namely Ankush hardly aged one year from the lawful custody of his mother and maternal grand parents. As per the testimony of PW4 Smt. Kamlesh, mother of the child, she came to visit her parents at Nihal Vihar while the accused Sheela who was earlier residing as the tenant of her parents and is now residing two State Vs. Sheela, FIR No. 71/11, PS Bhalaswa Dairy Page 16 of 27 houses away in the same area, had come to her parents house in the evening on the pretext of noting down a telephone number of her brother from the wall of their house which was permitted. It is alleged that at that time she (PW4) was having her son/ child Ankush aged about one year with her and she left her son at the door and went to toilet and when she came back after 23 minutes, the child was missing and the accused Sheela was also not there. Thereafter, Kamlesh went out of her house in search of her child in the street and found one of the neighbours i.e. Daya Ram with her child when she noticed that the clothes of the child were wet and she was told by Daya Ram that the child was lying in the water and he had taken him out from there. PW4 Smt. Kamlesh has further testified that Daya Ram has also told her that one lady wearing the red suit who was staying opposite her (PW4's) house had thrown the child in the muddy water. Here I may observe that Daya Nand who has been examined as PW3 has turned hostile on the identity of the accused. He is also the resident of the same area. Initially in his statement before the police, he had stated that he had seen the lady with the red suit throwing the child in the muddy water and he pulled the child out of the muddy water. He had also mentioned to the police that in the same process he took the assistance of Saurabh and Imran (PW5 and PW6) after which he followed lady. I may also observe that PW3 Daya Ram is the resident of the same area where the accused State Vs. Sheela, FIR No. 71/11, PS Bhalaswa Dairy Page 17 of 27 Sheela is also residing and the possibility of Daya Ram trying to save Sheela, his neighbour, cannot be ruled out.
PW5 Saurabh and PW6 Imran who were returning from their jobs and were passersby of the area had also witnessed the incident. They have supported the prosecution and have specifically deposed that when they reached at main road A3 Block, Bhalaswa Dairy, they found one lady who was wearing red colour salwar suit was going after throwing something in the muddy water in a pit on which they got suspicious and they went near the pit and found that Daya Ram (PW3) a resident of the same area was also present there who carefully saw in the water and he entered into the pit and took out a small child from there. Both Imran and Saurabh have identified the accused Sheela by pointing out toward her in the court as the lady who was wearing a read Salwar and Suit and had thrown something in a pit of muddy water which they later found was a child. In fact PW5 Saurabh has specifically deposed that it was Daya Ram (PW3) who along with Kamlesh had apprehended the accused Sheela. All the witnesses i.e. PW4 Kamlesh, PW5 Saurabh and PW6 Imran, are consistent in their testimonies on the aspect of the accused Sheela being in possession of the child taken away from the lawful custody of his mother Kamlesh. In fact, when the child was left in the room by Kamlesh and the accused Sheela was the only person in the said room but soon after 23 minutes both the child and Sheela were State Vs. Sheela, FIR No. 71/11, PS Bhalaswa Dairy Page 18 of 27 missing. Thereafter, it was within a matter of a few minutes that Imran and Saurabh who were passerbyes and returning to their home after days work, noticed Sheela throwing something in a pit filled with muddy water and on getting suspicious they saw there and noticed a child which was rescued by Daya Ram and soon immediately thereafter was handed over to the mother Kamlesh. This entire sequence of events conclusively establish the aspect of kidnapping by the accused.
Kidnapping for the purposes that the child may be murdered or deposed off in order to give sacrifice (Bali):
The case of the prosecution is that the accused Sheela had kidnapped the child Ankush aged about one year in order to murder or to put sacrifice (Bali) and therefore under these circumstances she had thrown the child in the muddy water. The aspect of kidnapping i.e. taking the child out of the lawful custody of his mother has already stand established. It also stand established from the testimonies of the eye witnesses i.e. PW5 Saurabh and PW6 Imran that they had seen the accused Sheela throwing the child in the muddy water. PW3 Daya Ram has also corroborated the testimonies of PW5 and PW6 to alimited extent that he had found the child in the muddy water though he has turned hostile on the identity of the accused and has not come out with the complete facts but other two eye witnesses PW5 Saurabh and PW6 Imran in their testimonies have State Vs. Sheela, FIR No. 71/11, PS Bhalaswa Dairy Page 19 of 27 supported the case of the prosecution. The relevant portion of the testimony of PW5 Saurabh is as under:
" ....... On 23.04.2011 I and my friend Imran were coming back to our house. When we reached at main road A3 Block Bhalsawa Dairy at about 10.00PM, we found one lady who was wearing red color salwar suit was going after throwing something in the muddy water in a pit. I got suspicious and I along with Imran went near the pit. We found one Daya Ram resident of the same area was also present there who saw carefully in the water as to what was thrown by that lady. He entered in the pit and took out a small child from the water.
When Sh. Daya Ram was taking the child towards the street, I and Imran also followed him. The lady who had thrown the child in the water had gone towards the street. I, Imran and Sh. Daya Ram also went towards the same street. When we reached in the street the mother of the child whose name was known as Kamlesh met us. She had identified her child.
Kamlesh and Daya Ram Ji apprehended the lady who had thrown the child in the water. ....." The relevant extract of the testimonies of PW6 Imran is as under:
" ...... On 23.04.2011 I and my friend Saurabh were coming back to hour house from our job.
We were coming via A3 Block, Main Road, Bhalsawa Dairy and reached behind A2 Block State Vs. Sheela, FIR No. 71/11, PS Bhalaswa Dairy Page 20 of 27 at about 10.00PM, we found one lady who was wearing red color salwar suit was going after throwing something in the muddy water in a pit. I got suspicious and I along with Saurabh went near the pit. We found one Daya Ram resident of A2 Block of the same area was also present there who saw carefully in the water as to what was thrown by that lady. He entered in the pit and took out a small child from the water. Sh. Daya Ram was taking the child towards the street, I and Saurabh also followed him. The lady who had thrown the child in the water had gone towards the street. I, Saurabh and Sh. Daya Ram also went towards the same street. When we reached in the street the mother of the child whose name was known as Kamlesh met us. She had identified her child.
Kamlesh and Daya Ram Ji apprehended the lady who had entered in her house immediately after throwing the child in the water. ..."
Both PW5 and PW6 were not previously known to the accused and have no history of any kind of animosity with her and there is no reason for them to falsely implicate her. Ld. defence counsel has vehemently argued that both these witnesses are the planted witnesses and were not even present at the spot. Here I may observe that the ground raised by Ld. defence counsel does not appear convincing in view of the fact that both PW5 Saurabh and PW6 Imran are not in any manner known or related either to the State Vs. Sheela, FIR No. 71/11, PS Bhalaswa Dairy Page 21 of 27 child or his family in any manner and were the witnesses who happened to be present at the spot perchance as they were returning from their respective jobs. They have stood their grounds in their cross examination also and there is no material contradictions in their testimonies to render the same unbelievable. No doubt, PW4 Kamlesh has in her testimonies stated that when the child was brought to her, the child did not have any injuries and she thereafter immediately gave a bath to the child and changed his clothes which clothes were never taken into possession by the police, but that in itself would not be fatal to the case of the prosecution. She has deposed that the child was absolutely fine at the time when he was brought to her and therefore he was not medically examined though he was smudged with muddy water. Here I may observe that at the time of incident the child was hardly aged about one year and it is only natural and probably that if he is thrown in the pit of muddy water, his mouth would be filled with said muddy water and therefore the first person who had recovered the child from the pit would have noticed the same and cleaned his mouth which fact which stands established from the testimonies of PW5 Saurabh and PW6 Imran. Since the child had been immediately pulled out from the pit after it was thrown there, it is under these circumstances that there was no choking and water possibly did not enter the wind pipe / trachea and the child could be saved and was perhaps not even State Vs. Sheela, FIR No. 71/11, PS Bhalaswa Dairy Page 22 of 27 medically examined.
It is further borne out from the record that at the time when the police came to the spot, the public persons had already caught hold of the accused Sheela and the child had also been recovered by that time. The whole incident of the accused lifting the child and throwing it in muddy water only took a few minutes having happened in quick successions. The house of the accused Sheela was searched by the police but admittedly nothing incriminating to suggest that she had made any preparation to sacrifice the child, has been recovered from the house, a fact which is admitted by the witnesses of the prosecution. So much so, PW9 SI Rajender has admitted that the allegations of tantra mantra against the accused were only on the basis of the statement of the witnesses and presumption thereof, but there was no material recorded to connect and prove the said allegations. He further admits that even from the personal search of the accused nothing suspicious was recovered relating to tantraMantra to prove the allegations of sacrifice.
I have gone through the pointing out memo and the site plan. It is evident that the depth of the pit where the child was thrown had nowhere mentioned anywhere. Rather, the case of the prosecution is that the pit where the child was thrown was situated along the road. I may observe that under these circumstances if a small child aged about one year is thrown in a muddy water State Vs. Sheela, FIR No. 71/11, PS Bhalaswa Dairy Page 23 of 27 accumulating on the side of the road, he can certainly sustain injuries but the depth of the pit not being established nor there being any photographs of the site or medical record of the child, the intention / knowledge so attributed to the accused as that of causing death certainly does not stand establish.
The act of the accused is strange and can be committed only under two circumstances, firstly if the accused who was carrying away the child (for reason whatsoever) was caught when she would have thrown the child and run away out of fear of being exposed and secondly only if she is not a normal person mentally, in a position to understand the consequences of her/his own act. The second possibility is ruled out as there is nothing on record to suggest that the accused was not in a position to understand the consequences of her act nor has this plea has even been raised or proved by the accused. Therefore, the only other reason could have been that she out of fear of being caught while carrying away the child, on seeing Daya Ram and also Saurabh and Imran, had hurriedly thrown the child in the muddy water.
FINAL CONCLUSION:
In the case of Sharad Birdhichand Sarda Vs. State of Maharastra, AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, State Vs. Sheela, FIR No. 71/11, PS Bhalaswa Dairy Page 24 of 27 which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established.
The circumstances concerned 'must or should' and not 'may be' established;
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
Applying the above principles of law to the facts of present case, it is evident that the investigation conducted including the documents prepared in the present case have been substantially State Vs. Sheela, FIR No. 71/11, PS Bhalaswa Dairy Page 25 of 27 proved by the police witnesses including the investigating officer. It has been established that the accused Sheela was the resident of the area and has been identified by the eye witnesses as the lady who had taken away the child Ankush from the lawful custody of her mother and parents and thrown him in the pit filled with muddy water who and ran away thereafter. The eye witnesses PW5 Saurabh and PW6 Imran have further proved that they with the help of PW3 Daya Ram had rescued the child from the muddy water and thereafter Daya Ram with the help of Kamlesh apprehended the accused Sheela. This being the background, the aspect of kidnapping stands established and proved. However, in so far as the allegations regarding Tantra Mantra and of sacrificing the child or of entertaining any intention / knowledge to commit murder of the child are concerned, the same has not been proved and established beyond reasonable doubt. Therefore, the prosecution has not been able to prove and establish beyond reasonable doubt that the child had been kidnapped for the purposes of murder or to dispose it off by putting his life in danger for the purposes of bali (sacrifice). It has also not been proved and established beyond reasonable doubt that the accused had done this act under the knowledge that under such circumstances if by that act death of the child would have been caused, she would have been guilty of murder. Therefore, the prosecution having failed to conduct the medical examination of the child or to take the photographs of the State Vs. Sheela, FIR No. 71/11, PS Bhalaswa Dairy Page 26 of 27 place or to bring on record the material to prove that the pit containing muddy water was deep enough to have drowned the child, I hereby hold that the offence committed by the accused satisfies the ingredients of provisions of Section 363 Indian Penal Code (i.e. lesser offence) and not the provisions of under Section 364 of Section 307 Indian Penal Code.
In view of the above, I hereby hold that the offence under Section 307 Indian Penal Code is certainly not made out against the accused as the act in question does not fulfill the ingredients of the provisions of Section 307 IPC and therefore the accused Sheela is hereby acquitted of the same. However, I hold that the offence committed by the accused certainly satisfies the ingredients of the provisions of Section 363 Indian Penal Code (lesser offence) and not under Section 364 Indian Penal Code and therefore, I hereby hold the accused Sheela guilty for the offence under Section 363 Indian Penal Code and accordingly convict her for the same.
Be listed for arguments on sentence on 18.10.2011.
Announced in the open court (Dr. KAMINI LAU)
Dated: 13.10.2011 ASJ (NW)II: ROHINI
State Vs. Sheela, FIR No. 71/11, PS Bhalaswa Dairy Page 27 of 27
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGEII (NORTHWEST): ROHINI COURTS: DELHI Sessions Case No. 17/2011 Unique Case ID: 02404R0172062011 State Vs. Sheela W/o Raj Kumar R/o House No. A2/164, JJ Colony, Bhalaswa Diary, Delhi.
Also at:
Village Baliyana, PS Sapla, Distt.: Rohtak, Haryana.
(Convicted)
FIR No. : 71/2011
Under Section : 364/307 Indian penal Code.
Police Station : Bhalaswa Dairy
Date of Conviction : 13.10.2011
Arguments heard on : 18.10.2011
Date of sentence: 18.10.2011
APPEARANCE:
Present: Sh. Taufique Ahmed, Addl. Public Prosecutor for the
State.
Convict in judicial custody with Sh. V. S. Yadav, Advocate.
State Vs. Sheela, FIR No. 71/11, PS Bhalaswa Dairy Page 28 of 27 ORDER ON SENTENCE:
Vide my separate detailed judgment dated 13.10.2011 the accused Sheela has been acquitted from the charges under Section 307 Indian Penal Code but has been convicted for the lesser offence under Section 363 Indian Penal Code (not under Section 364 Indian Penal Code).
As per the prosecution case, on the intervening night of 23/24.4.2011 in between 9:45 PM and 10:00 PM at the back of House No. A2/167, JJ Colony Bhalaswa Dairy the accused Sheela kidnapped the child Ankush aged about one year from the guardianship of her mother Kamlesh, in order that the child may be murdered or may be so disposed off in order to give "Bali" (sacrifice) and thereafter she drowned the child in the water in an attempt to kill the child in order to give "Bali" (sacrifice). However, on the basis of the testimonies of the witnesses, particularly the complaint and the alleged eye witnesses, this court vide a detailed judgment dated 13.10.2011 has acquitted the accused Sheela from the charge under Section 307 Indian Penal Code but she has been held guilty for the offence under Section 363 Indian Penal Code (not under Section 364 Indian Penal Code).
I have heard the arguments on the point of sentence. The convict Sheela is aged about 35 years having a family comprising of husband (rickshaw puller) and two sons namely Vicky (aged 16 State Vs. Sheela, FIR No. 71/11, PS Bhalaswa Dairy Page 29 of 27 years) who is totally illiterate and Vikas (aged 14 years) who is studying in fifth class. She is totally illiterate and is a labour by profession. She is not involved in any other case and is a first time offender. The convict is in judicial custody since 24.4.2011 and has already remained in custody for about five months and twenty four days.
Ld. counsel appearing on behalf of the convict has vehemently argued that the convict is a lady having school going children and after her arrest the children are being taken care of by her mother in law, her husband being job less. He has also argued that the convict is a helping hand to her husband and any harsh view would be detrimental to her children and her family members. He has prayed that a lenient view be taken against the convict keeping in her family background. On the other hand, the Ld. Addl. PP for the State has prayed that a strict punishment be awarded to the convicts keeping in view the allegations involved.
I have considered the rival contentions. The convict Sheela has no history of any previous involvement and is first time offender. Keeping in view the age of the convict and family circumstances, any harsh view taken by this court at this stage would be prejudicial to her family. Therefore, in view the above, a lenient view is taken and the convict Sheela is sentenced to Rigorous Imprisonment for a period of Three years and fine to the tune of State Vs. Sheela, FIR No. 71/11, PS Bhalaswa Dairy Page 30 of 27 Rs.500/ for the offence under Section 363 Indian Penal Code. In default of payment of fine the convict shall undergo a Simple Imprisonment for a period of one week.
Benefit of Section 428 Cr.P.C. shall be given to the convict for the period already undergone by her as per rules. The convict Sheela is already in judicial custody. She is sent to judicial custody for serving the remaining period of sentence.
The convict is informed that she has a right to prefer an appeal against this judgment. She has been apprised that in case she cannot afford to engage an advocate, she can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 3437, Lawyers Chamber Block, High Court of Delhi, New Delhi.
Copy of the judgment and order on sentence be given to the convict free of costs and another be attached with her jail warrants.
File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU)
Dated: 18.10.2011 ASJ (NW)II: ROHINI
State Vs. Sheela, FIR No. 71/11, PS Bhalaswa Dairy Page 31 of 27