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2016 DIGILAW 1765 (RAJ)

State of Rajasthan v. Sunder

2016-12-06

NAVIN SINHA, VIJAY KUMAR VYAS

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JUDGMENT : 1. The present appeals arise from order dated 11.04.1984 of the Sessions Judge, Tonk in Sessions Trial 12/1983. The former appeal by the State questions acquittal of the charge under Section 302 IPC while in the latter the Appellant questions her conviction under Section 304 Part II and 452 IPC to five years rigorous imprisonment with fine and default stipulation. 2. According to the police report lodged by PW-2, Ghasi neighbour of PW-1, Bhuri he heard commotion from her house and upon going their saw that the Appellant had forcibly taken away the 1½ years old child Ramlal from the lap of PW-1, Bhuri while the latter was running behind her. The Appellant threw the child from a platform approximately 4 feet in height after which the child was kicked by her children Sunder and Shanti. The post-mortem Exhibit P/6 proved by PW-5, Dr. Shyam Sunder Ojha found bruises and abrasions with fracture of left third rib 1" away from the junction of ribs and sternum, the rib attached to sternum was elevated and rest of fractured rib was depressed causing damage to the left plura at the site of fracture. The cause of death was opined to be injury on the chest wall causing fracture of third left rib damaging the left plura resulting in shock. The doctor also opined that these injures were possible from kicks. Single rib fracture could be caused by kick but the other fractures could be caused by kicking with considerable force. Injury No. 3 bruises on chest wall 1" x 1" at the side of sternum about 2" below the clavicle left side was clearly opined to have been caused by a hard and forcible fall. 3. Learned Counsel for the Appellant submitted that PW-2, Ghasi and PW-4 Khem Kanwar were not eyewitness to the occurrence. PW-1, Bhuri is the sole eyewitness. Enmity between the parties because of land dispute has been admitted by the latter. The possibility of false implication cannot be ruled out as the occurrence took place on 14.01.1983 at about 6-7 P.M. in the evening but the FIR has been lodged on 15.01.1983 at about 11.00 A.M. after about 16 hours without any explanation for the delay. There was no intention and neither can knowledge be attributed to her as the falling of the child during a scuffle was purely an accident. There was no intention and neither can knowledge be attributed to her as the falling of the child during a scuffle was purely an accident. The Appellant is approximately 84 years of age today and therefore her sentence may be altered to the period undergone if the conviction is to be sustained. Reliance was placed on 2010(1) WLC (SC) Criminal (Sau Panchashila Dada Messhram Vs. State of Maharashtra), (2015) 11 SCC 588 (Ravinder Singh Vs. State of Haryana) and 1993 RCC 15 (Rajia v. State of Rajasthan). 4. It was further submitted that 8 to 9 years old child Samodara of PW-1, Bhuri who also came on hearing the screaming has not been examined which raises doubts about the prosecution story. The platform was hardly at 2 feet height according to PW-1, Bhuri in cross-examination. 5. Counsel for the State submitted that it was a cold blooded murder committed by the Appellant with knowledge of the consequences of throwing a 1½ years old tender child from a height of approximately 4 feet. The brutality of the assault is evident from the subsequent kicks given to the child by co-accused. The two others who kicked the child were juveniles and were tried separately. The Appellant was approximately 40 years of age on 28.02.1984 when her statement under Section 313 Cr.P.C. was recorded. The fact that today she may be approximately 72 years of age cannot be sufficient to invoke sympathy as a ground for not imposing appropriate punishment keeping in mind that she remained in custody for approximately three months only before being enlarged on bail. Reliance was placed on 2005 Crl.L.J. 333 (SC) (State of Utter Pradesh Vs. Kishan). If it was cold blooded murder, the conviction deserves to be altered from 304 Part II to Section 302 IPC and the State appeal be allowed. The delay in lodging of the FIR has been fully explained by PW-1 Bhuri during cross-examination. 6. We have considered the submissions on behalf of the parties and perused the evidence on record. 7. PW-1, Bhuri is the mother of the victim child aged approximately 1½ years. The child was snatched by the Appellant from her mother's lap followed by a scuffle after which the Appellant threw the child from the platform to be followed by kicks resulting in death. 7. PW-1, Bhuri is the mother of the victim child aged approximately 1½ years. The child was snatched by the Appellant from her mother's lap followed by a scuffle after which the Appellant threw the child from the platform to be followed by kicks resulting in death. The witness also suffered injuries during the scuffle evident from her MLR, Exhibit P-18 dated 16.01.1983 showing five bruises and abrasions on her body along with complaint of pain in several other areas of the body. The injuries though simple were caused by hard blunt substance. She is therefore an injured eye witness. The credibility of an injured witness has always been considered high as the law presupposes that having been injured in the same occurrence the witness was speaking the truth unless there be reasonable and sufficient grounds to doubt the credibility. 8. The credibility of the witness is further enhanced by reason of the fact that she was also the mother of the 1½ years old child. There would be none more interested that the real culprit be brought to book than the mother of the child. Unless there be any serious lacuna or major contradiction in her evidence it can safely be presumed that she is speaking the truth with regard to the manner in which the occurrence may have taken place and the child died. 9. PW-2, Ghasi has stated that on hearing the commotion he came to the house of the victim and saw the child lying unconscious on the ground with blood coming out of his nose. But he also states that he saw the child being kicked. Likewise PW4 Khem Kanwar states that he was sitting on the roof of his house and claims to have witnessed the occurrence from there. The Appellant has urged that both were inimical witnesses to urge false implication. 10. The submission that the delay of 16 hours in lodging of the FIR raises a distinct possibility of deliberation and a well crafted FIR for false implication given the land dispute does not impress the Court. The child is alleged to have suffered injuries at about 6 pm-7 pm in the evening on 14.01.1983. The police statement of the mother PW-1, Bhuri was recorded the very next day on 15.01.1983. The child is alleged to have suffered injuries at about 6 pm-7 pm in the evening on 14.01.1983. The police statement of the mother PW-1, Bhuri was recorded the very next day on 15.01.1983. She was consistent on all material aspects in her Court statement also with regard to the substance of the allegations that she was sitting at home with the child in her lap when the Appellant and others came, snatched the child from her lap, took it down the steps and threw the child from the platform. There is no material omission or contradiction in her police statement and Court statement so as to doubt the credibility of her evidence. Even otherwise, being the mother of a tender 1½ years old child, we have already held that there is no reason why she would be speaking falsehood. It is true that there was past enmity between the parties on account of land dispute but that by itself cannot be considered sufficient to accept the plea of an accidental death in a scuffle in view of evidence of PW-1, Bhuri coupled with the medical opinion that the injuries on the child were the result of kicking and on being thrown with force on a hard surface. It is not the case of the Appellant that the witness was assaulting her own child. The submission that the child may have accidentally fallen down in the scuffle cannot be accepted and has to be rejected. 11. PW-1, Bhuri was a widow living with her two minor daughters excluding the victim child. She was at home and did not suspect that her child was dead. She thought that he was only unconscious. After the occurrence she went away to her maternal mother-in-law and came back home at about 4.00 am in the morning and tried to breastfeed her child believing that he was still alive and then only realised that the child had passed away. The child was taken to one Dr. Shyam Sunder Ojha who gave an injection even after which the child did not regain consciousness and neither cried. It is apparent from her evidence that the child had not died immediately after it was thrown on the ground but was breathing mildly and which may have been the reason why she went away to the house of her maternal aunt in the night. It is apparent from her evidence that the child had not died immediately after it was thrown on the ground but was breathing mildly and which may have been the reason why she went away to the house of her maternal aunt in the night. The doctor sat at Diggi which was at a distance of four miles. In the circumstances her first priority obviously was her child and therefore the delay in lodging of the FIR stands fully explained. It is not that in every case when there is delay the FIR must necessarily be considered suspect and rejected on that ground. It would depend upon the facts and circumstances of each case. 12. Considering the tender age of the child and the postmortem report, there can be no doubt that the death of the child was not the result of an accidental fall but a deliberate act of assault. The fact that the child may have been thrown from a height of hardly 2 to 4 feet is considered irrelevant given the tender age. We find no reason therefore to take any view different from that of the Session Judge that the Appellant was guilty under Section 304 Part II and 452 IPC. 13. That brings to the fore the question of her sentence considering her advanced age today. According to her statement under Section 313 Cr.P.C. she should be approximately 74 to 75 years of age today and according to her age mentioned in her voter identity card she would be approximately 84 years of age today. Reliance by the Appellant on Sau Panchashila Dada Messhram (supra) is misconceived as it related to the act of the parents of the two years old child locked in the bathroom for fourteen days on the advice of the sorcerer culminating in death. Likewise in Ravinder Singh (supra), the sentence was reduced from seven years to the period already undergone under Section 304 Part II considering the passage of 22 years and the age of 72. It did not relate to assault on a helpless child of 1½ years unable to defend itself tossed around like a ball for which the considerations regarding appropriate sentence will have to be considered keeping the aforesaid factors in mind. The assault on an adult would be an entirely different matter. It did not relate to assault on a helpless child of 1½ years unable to defend itself tossed around like a ball for which the considerations regarding appropriate sentence will have to be considered keeping the aforesaid factors in mind. The assault on an adult would be an entirely different matter. The observations extracted therein from (2000) 4 SCC 75 , (State of Karnataka Vs. Krishnappa) are considered appropriate as follows:- "18........The sentencing Courts are expected to consider all relevant facts and circumstance bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence. Courts must hear the loud cry for justice by the society in cases of heinous crimes of rape on innocent helpless girls of tender years as in this case, and respond by imposition of proper sentence. Public abhorrence of the crime needs reflection through imposition of appropriate sentence by the Court. There are no extenuating or mitigating circumstances available on the record which may justify imposition of any sentence less than the prescribed minimum to the respondent. To show mercy in the case of such a heinous crime would be travesty of justice and the plea for leniency is wholly misplaced........." 14. Likewise in Rajia (supra) she was approximately 16 years of age at the time of commission of the offence and 18 years at the time of conviction under Section 304 Part II IPC, which was altered to one under Section 6 of the Probation of Offenders Act. The case is distinguishable on its own facts. 15. We are not in agreement with the Counsel for the State that the conviction deserves to be altered and enhanced to one under Section 302 IPC as the Appellant is not alleged to have picked up the child and thrown it straightway. She took the child from the lap of PW-1 Bhuri, came down the steps, a scuffle continued at which point of time she threw the child from the platform. Normally falling from that height would not necessarily result in death but if a tender child of 1½ years is thrown from that height with force, even if there be no intention, knowledge as rightly held by the Sessions Judge can easily be attributed. 16. Normally falling from that height would not necessarily result in death but if a tender child of 1½ years is thrown from that height with force, even if there be no intention, knowledge as rightly held by the Sessions Judge can easily be attributed. 16. Keeping in mind the advanced age of the Appellant, we consider it appropriate to direct that at the time of her surrender she shall be medically examined in presence of a doctor and a report shall be prepared of her physical condition and ailments, if any. It shall be the responsibility of the jail authorities to ensure her good health and treatment when necessary. She shall also be provided any such necessary and imperative facility as may be required because of her advanced age. The jail authorities on the day of her surrender are also directed to intimate immediately the Secretary, District Legal Services Authority of the District concerned in writing. The Secretary shall ensure that PLV visits the Appellant once a fortnight and submits a report to the Secretary, District Legal Services Authority who shall in coordination with the jail authorities ensure that she is provided and looked after befitting her age. 17. The bail bonds of the Appellant are cancelled. She is directed to be taken into custody forthwith and/or surrender for serving out the remaining period of her sentence. 18. With the aforesaid observations, both the appeals are dismissed.