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2013 DIGILAW 682 (UTT)

SUMITRA DEVI v. STATE OF UTTARAKHAND

2013-10-25

BARIN GHOSH, SERVESH KUMAR GUPTA

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JUDGMENT Per: Hon’ble Servesh Kumar Gupta, J. Both the above-captioned appeals have been preferred by the appellant Smt. Sumitra Devi; one from the Jail and the other on her behalf. Therefore, both are being decided by this judgment. 2. Smt. Sumitra Devi, the convict u/s 302 IPC, has challenged the judgment and order dated 11.01.2011 rendered by the Sessions Judge, Tehri Garhwal in Sessions Trial No.10 of 2010 titled as ‘State Vs. Sumitra Devi’ (crime no.2/2009 at Revenue Police Laluri, District Tehri Garhwal). The said trial resulted into the conviction of the said offence, wherefor she has appropriately been sentenced. 3. It is pertinent to mention here that the appellant is in prison ever-since the date of her arrest soon after occurrence. 4. Appellant is the first wife of Padam Lal @ Pushya. He (Padam Lal), during subsistence of his first marriage with the appellant, entered into a second wedlock with complainant Geeta Devi. The first information report was lodged on 18.11.2009, wherein the informant averred that on 16.11.2009 at about 8-9 AM, while she was in her parental house, appellant Sumitra Devi reached there along with Padam Lal. The reporter further states that since she was blessed with a son about a month ago, so she was living in her parental house along with her sister Guddi Devi. Thus, at the time of occurrence, complainant, along with her infant son, besides sister Guddi, was present in the house. It was further averred that at the relevant point of time, appellant Sumitra, in connivance with Padam Lal, entered the complainant’s house, picked up her child from inside the room and threw him on the roof of adjacent school. Not only this, appellant again picked up the child from there and threw him down on the road, with the result, the child died at the spot itself. After the incident, appellant and Padam Lal escaped from the spot. With the same averments, the FIR (Ex.Ka-2) was lodged. Chick report thereof is Ex.Ka-3. Investigation was conducted by the revenue police which culminated into submission of charge-sheet (Ex.Ka-6) only against the appellant Sumitra Devi. 5. On 06.05.2010, learned Sessions Judge, Tehri Garhwal levelled the charges against the appellant/accused under Sections 302, 323 and 506 (Part-II) IPC, to which, she abjured her guilt and claimed trial. 6. Chick report thereof is Ex.Ka-3. Investigation was conducted by the revenue police which culminated into submission of charge-sheet (Ex.Ka-6) only against the appellant Sumitra Devi. 5. On 06.05.2010, learned Sessions Judge, Tehri Garhwal levelled the charges against the appellant/accused under Sections 302, 323 and 506 (Part-II) IPC, to which, she abjured her guilt and claimed trial. 6. The court below, at the end of trial, did not find any evidence against the appellant for the offences under sections 323 and 506 (Part-II) IPC but at the same time, held her guilty for the offence under section 302 IPC. 7. We have heard learned counsel for the parties as also perused the entire evidence. 8. The only evidence, which is available on record, is of PW1 Ms. Guddi, who is the real sister of complainant Geeta Devi. PW1 in her examination-in-chief has disclosed that since the first wife Sumitra (appellant) could not beget any progeny, her husband entered into second wedlock with Geeta Devi. She (Geeta Devi) was conceived and blessed with a son who was named as Naveen. The infant was about 1½ month’s old at the time of incident. 9. Here, we would like to first go through the evidence of PW6 Geeta, mother of deceased, who has been examined by the prosecution as PW6. She has been declared hostile by the prosecution, inasmuch as, she has denied the factum of lodging the first information report (Ex.Ka-2). All the more, the witness has even disowned her so call thumb impression on the report. Although, she has accepted her second marriage with Padam Lal, as also her presence in her parental house on the date and time of incident, but has gone further so as to clarify the occurrence. She has deposed that in her parental house, a quarrel took place between Padam Lal and Sumitra Devi (appellant). She (PW6) tried to intervene between the two, as also strived to mollify the dispute arose between them. At that time, the infant was in her lap. In the course of such intervention, her foot slipped, with the result, the child fell down on the earth. She has specifically denied the fact of picking up of the child from inside the room on the part of the appellant and subsequently throwing away, as has been deposed by PW1. At that time, the infant was in her lap. In the course of such intervention, her foot slipped, with the result, the child fell down on the earth. She has specifically denied the fact of picking up of the child from inside the room on the part of the appellant and subsequently throwing away, as has been deposed by PW1. Thus, in light of the evidence given by the mother of infant (deceased), the entire prosecution case looses its base. 10. Except PW1, there is no other ocular witness of the crime. All the witnesses have proved their arrival on the spot only when the child had already been fallen on the ground. Besides, they did not see as to how and by whom, the child had been fallen on the earth. So with such an evidence, it is not possible to ascribe any guilt upon the appellant Sumitra Devi. 11. That apart, PW1 Km. Guddi has categorically accepted in her cross-examination that her sister Geeta Devi (informant) entered into wedlock with Padam Lal out of love and affection, wherefor all the family members had strong disapproval.The statement tendered by PW1 to the effect that, Padam Lal entered into this second marriage with Geeta Devi because his first wife Sumitra (appellant) could not produce any progeny, did not have any substance. In her statement recorded u/s 313 Cr.P.C., the appellant has disclosed herself to be the mother of five children. In light of the provision of Section 391 Cr.P.C. which provides for taking additional evidence on record at the appeal stage, when the appellant’s counsel was asked to produce all the five children, three of them were produced before this Court. Besides, their school leaving, permanent residence and birth certificates were also accepted on record as additional evidence. 12. Thus, in light of the foregoing facts and circumstances of the case, we do not find any cogent or reliable evidence, available on record against the appellant, so as to hold her guilty for the offence. With the result, we allow both the appeals preferred by her, thereby setting aside the impugned judgment and order of her conviction. Appellant Smt. Sumitra Devi will be set at large from the jail forthwith, if her detention is not needed in any other criminal case. 13. Let a copy of this order along with the LCR be sent to the court concerned for compliance.