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Sobha Devi vs The State Of Bihar on 27 August, 2018

Patna High Court CR. APP (SJ) No.533 of 2015 dt.27-08-2018 1

IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.533 of 2015
Arising Out of PS.Case No. -78 Year- 2002 Thana -BELAGANJ District- GAYA

1. Sobha Devi, wife of Late Binod Sharma, resident of Village Chainpur, P.S.
Belaganj, District Gaya
…. …. Appellant/s
Versus

1. The State of Bihar
…. …. Respondent/s

Appearance :

For the Appellant/s : Mr. Rama Kant Sharma, Sr. Advocate
Mr. Rakesh Kumar Sharma, Advocate
Mr. Laxmi Kant Sharma, Advocate
For the Respondent/s : Mr. Parmeshwar Mehta, APP

CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
ORAL JUDGMENT
Date: 27-08-2018

Appellant, Sobha Devi has been found guilty for an

offence punishable under Section 201 of the IPC and sentenced to

undergo RI for 5 years as well as to pay fine of Rs. 10,000/- in default

thereof, to undergo SI for 3 months vide judgment of conviction and

order of sentence dated 30.07.2015 passed by 2nd Adhoc Additional

District Sessions Judge, Gaya relating to Sessions Trial No.

57/2012/372A/2003.

2. Md. Husnain (PW 5) gave his Fard-e-beyan on

09.07.2002 at about 5.15 PM disclosing therein that he happens to be

teacher at Naglal Agrawal, Middle School, Belaganj. Halima Khatoon

aged about 7 years who was studying at Adarsh Children Academy,

Belaganj was the daughter of his brother-in-law (Sala) Irfan and was

living in a Girls’ Hostel running in the house of Chandradip Singh, a

retired Headmaster of which Sobha Devi wife of Binod Sharma
Patna High Court CR. APP (SJ) No.533 of 2015 dt.27-08-2018 2

happens to be proprietor who also resides in the same hostel along

with her family members. Yesterday, i.e. on 08.07.2002 at about 7:00

AM, he left the aforesaid Halima Khatoon at the hostel entrusting to

Sobha Devi. Today at about 11:45 AM, one boy namely, Sani

Husnain son of Tajammul Husnain came to his school and informed

that Halima is not present in the school over which, he has been called

upon by the Headmaster. He rushed and then inquired from Sobha

Devi who also disclosed that she is also searching her but, could not

locate. Then thereafter, he had gone to the place of maternal grand

mother of Halima but, failed to locate her. When he returned back

therefrom, then he came to know that dead body of a girl is lying in

the campus of the hostel whereupon, he rushed and seen assemblage

of a large number of persons. Identified the body to be that of Halima

Khatoon. He had also seen froth coming out from her mouth as well

as blood from her ears. Therefore, he had shown his suspicion against

Sobha Devi to have killed Halima in her room and then, threw the

dead body in the campus of the hostel.

3. After registration of Belaganj PS Case No.

78/2002, investigation commenced and after concluding the same,

charge-sheet was submitted against Sobha Devi and Raushan Kumar

for an offence punishable under Sections 302, 201 of the IPC which

happens to be the basis of trial. It is further evident that trial of

Raushan Kumar has been bifurcated being juvenile while trial
Patna High Court CR. APP (SJ) No.533 of 2015 dt.27-08-2018 3

proceeded against the appellant, Sobha Devi and concluded by way of

recording verdict of guilt and sentence, subject matter of the instant

appeal.

4. Defence case as is evident from the mode of cross-

examination as well as statement recorded under Section 313 CrPC is

that of complete denial. However, nothing has been adduced in

defence.

5. In order to substantiate its case, prosecution had

examined altogether 8 PWs who are PW-1, Md. Izhar Alam, PW-2,

Md. Khowaza, PW-3 Md. Meraj, PW-4, Shah Nawaz, PW-5, Md.

Husnain, PW-6, Dr. Arvind Prasad, PW-7, Chandradeo Singh and

PW-8, Bipin Kumar as well as had also exhibited Ext-1 Series,

signature of respective witnesses over inquest report, Ext-2, Signature

of Md. Izhar over Fard-e-beyan, Ext-3, Signature of informant over

Fard-e-beyan, Ext-3/1, Fard-e-beyan, Ext-4, Signature of PW-7 over

seizure list, Ext-5, Postmortem report, Ext-6, Signature of PW-7 over

seizure list, Ext-7, Formal FIR, Ext-8, inquest report, Ext-9,

inculpatory extra judicial confessional statement of co-accused,

Raushan Kumar. As discussed above, nothing has been adduced in

defence.

6. Manifold arguments have been made at the end of

learned counsel for the appellant while challenging the judgment

impugned. The first and foremost happens to be that the Investigating
Patna High Court CR. APP (SJ) No.533 of 2015 dt.27-08-2018 4

Officer has not been examined and so, interest of accused is found

highly prejudiced. Had there been examination of Investigating

Officer, then in that circumstance (A) the genuine conduct of the

appellant would have been exposed, (B) the real place of occurrence

would have been shown, (C) status of the witnesses would have been

properly identified, (D) was it possible for the appellant to know

about the end of occurrence on account of having her presence at the

school away from the hostel during the intervening period.

7. Furthermore, it has also been submitted that none of

the witnesses have stated that the appellant had tried to remove the

evidence of crime nor tried to mislead by way of giving wrong

information in order to screen the culprit and that being so, no offence

under Section 201 IPC is made out. Further, the plea has been

buttressed by citing the case of NAGENDRA BHAKTA V.

EMPEROR as reported in (AIR 1934 CAL 144), SOU VIJAYA @

BABY V. STATE OF MAHARASHTRA, (AIR 2003 SC 3787) and

PADMINI MAHENDRABHAI GADDA V. STATE OF GUJARAT

as reported in (2017) 14 SCC 587. So submitted that the instant appeal

is fit to be allowed.

8. The learned APP strenuously argued that the plea

whatsoever raised on behalf of the appellant is not at all found

appreciable in the background of the fact that she was custodian of the

hostel, victim was entrusted to her, victim was of such age which
Patna High Court CR. APP (SJ) No.533 of 2015 dt.27-08-2018 5

needed presence of elders for all practical purpose and in the aforesaid

background, missing of victim without any proper activity at her end

suggests otherwise than the normal conduct. After all, she happens to

be literate, a teacher as well as custodian of the minor girls and so,

must have taken recourse to inform the police as soon as the matter

came to her knowledge. Moreover, being custodian and further having

been entrusted with the custody of the minor girl and further, her

presence was within the premises as proprietor of the hostel where

deceased Halima was murdered, for that she was the only person to

explain as required under Section 106 of the Evidence Act and having

failed on that very score, irrespective of the fact that learned lower

court had acquitted her for an offence punishable under Section

302/34 IPC, it would not have in the background of the fact that from

the postmortem report, Ext-5, it is evident that victim was raped

before her death and further, which found duly corroborated by way

of presence of ante-mortem injuries. So, not only her conviction and

sentence under Section 201 IPC is justifiable rather she should have

been convicted for abetting the offence of rape as well as murder of

the victim, more particular, in the background of the fact that the

brother of the appellant, namely, Raushan Kumar was also residing

along with her in the hostel and his involvement was found relating to

rape as well as commission of murder of the deceased. So submitted

that invoking the power as envisaged under Section 386 CrPC,
Patna High Court CR. APP (SJ) No.533 of 2015 dt.27-08-2018 6

appellant be noticed on that very score and then, be adequately

punished.

9. PW-6 is the doctor who had conducted postmortem

over the dead body of deceased, Halima Khatoon aged about 7 years

on 10.07.2012 and found the following:-

(i) Lacerated wound 1 ¼” x ¼” x muscle
deep of left side chick below lower leap.

(ii) One minial semilullar abrasion of ¼” size
present at middle of chin.

(iii) Swelling with dark colored contusion was
found at upper leap in the middle and
right side.

(iv) Abrasion linear of ¼” size each heap of
nose left side and right side.

(v) Abrasion 2″ x 1″ at glabellas

(vi) Linear abrasion semi lullar of ¼” size at
left side of forehead.

(vii) Abrasion 4 in number linier semi luner
¼” each in front of left ear with abrasion
1×1/2″ at left ear over helix.

(viii) Abrasion several in number around night
knee at its lower parts and at joining part
of front and sides of night thigh of size
ranging brown ½” x ½” to 2″ x 1/2″

abrasion.

(ix) Several abrasion tiny linier were present
over medial side of upper part of left
thigh.

(x) Labia majora and minora were contused
at their medial margin, hymen was found
ruptured (recent) at two O’clock and
seven O’clock. Position– with blood and
blood clots in congested vagina. Exudate
(serum of inside) was found ruptured
hymen. On examination of vaginal swab,
dead non motail spermatozoa was found.

(xi) Abrasion 1 x1/4″ each and dorsum of
right wrist and dorsum of left forearm.

(xii) Scratch abrasion ¾” size linier present at
middle of interior chest wall.

(xiii) Lacerated wound 3 ½” x 1″ x bone deep
was found over left temporal occipital
Patna High Court CR. APP (SJ) No.533 of 2015 dt.27-08-2018 7

region behind left ear. Large Hematoma
was found covering left temporal parietal
and left side of occipital region upto
foramen magnum fracture of left
temporal and adjoining 1″ x of occipital
bone was found with inward dislocation
of fractured piece. It was a committed
fracture. Brain and meninges of
corresponding region grossly lacerated
with few small pieces of fracture bone
was found inside the brain substance.

Massive intra cerebral haemorrhage was
found all around. Beside these ante-

mortem injures one ligature mark of ½”

width was found obliquely place over
front and sides of neck. More marks at
left posterior part below left ear. Width at
left side was around.

On dissection:- no echymosiss was found
either any injury in the neck structure. This injury were
postmortem in nature. Time since death was within 35
hours to 40 hours. Cause of death shock and
haemorrhage by injury to head. All injuries were
produced by hard and blunt substance, features of sexual
assault, intercourse (recent) present.

10. During cross-examination it is evident that nothing

has been procured at the end of the defence. From the postmortem

report, it is apparent that the time elapsed since death has been found

within 36-40 hours. That means to say, deceased might have been

murdered in between 8th -9th .07.2002.

11. After duly acknowledging the status of the witnesses,

it is evident that none of the members who were occupying the

premises associated with affair of the hostel has been examined either

at the end of the prosecution or at the end of the appellant and that

being so, since when the deceased became missing has not come up
Patna High Court CR. APP (SJ) No.533 of 2015 dt.27-08-2018 8

over the witnesses whoever been examined are an eyewitness. That

means to say, the case is based upon circumstantial evidence.

12. PW-1 had visited the hostel after coming to know

about the missing of Halima by way of intercepting the rumour. While

PWs-3 and 4 who happen to be full brothers and were student of

Adarsh Children Academy where Halima was also taking her study

and were residing at a boys’ hostel run by the school have gone to

girls’ hostel where in a room belonging to appellant, they have seen

Raushan with Halima. PW-5 is informant. PW-7 is the house owner

while PW-8 is police official, though not concerned with the

investigation.

13. PW-2 is the witness on inquest and he had spoken

nothing more than the same.

14. PW-5 is the informant who, during course of

examination-in-chief, properly identified the status of the Sobha Devi

to be proprietor of the school as well as hostel. She was residing at the

hostel along with her family including that of her brother Raushan. He

had further narrated that Halima, daughter of his Sala, student of

Adarsh Children Academy, was residing in the hostel and further, on

08.07.2002, he had entrusted Halima under Sobha Devi. It has further

been deposed that on the alleged date of occurrence he came to know

that Halima was not present in the hostel whereupon, he had gone

there and inquired from Sobha Devi. She disclosed that she (Halima)
Patna High Court CR. APP (SJ) No.533 of 2015 dt.27-08-2018 9

is not present in the hostel. It appears that she might have gone

elsewhere. She also disclosed that she is searching and also requested

him to search. He had gone to search but, could not be able to locate

her. On the same day at about 5:00 PM, he came to know that dead

body of a girl is lying in the girl’s hostel whereupon he had gone there

and identified the dead body to be that of Halima having injuries over

back of head. Blood was oozing out from her ears, mouth. Froth was

also coming out. Hands and legs were broken. Police has also

recorded his further statement. He, later on, came to know that Halima

was raped by Raushan Kumar and then was done to death with the

connivance of Sobha Devi. Exhibited his signature over Fard-e-beyan,

seizure list. He had further stated that in his presence police had

recorded inculpatory extra-judicial confessional statement of Raushan

wherein he had admitted his involvement during course of

commission of the crime. Identified the accused.

15. During cross-examination at para-10, he had stated

that school and hostel are in common premise. Then there happens to

be cross-examination with regard to topography of the premises. In

para-12, he had further stated that girls’ hostel is running in the house

of one Chandradeep Babu, a retired Headmaster, by Sobha Devi

wherein the small girl children of Adarsh Children Academy were

being kept. In para-13, he had stated that the hostel is a double storey

building having been duly fenced. It has got eastern front. In para-14,
Patna High Court CR. APP (SJ) No.533 of 2015 dt.27-08-2018 10

he had stated that only small girl children were kept. One room was

occupied by Sobha along with her children, her brother who at that

very moment was aged about 16 years. Then had disclosed the

boundary. In para-18, he had disclosed that school was running right

from 7:30 to 4:00 PM. Children of his relatives, namely, Shah Nawaz,

and Md. Meraj were also studying in the said school. In para-20, he

had stated that inculpatory extra-judicial confessional statement of

Raushan was recorded in his presence whereunder he confessed his

guilt. He had further stated that Sobha used to go to school at 7:00

AM. In para-21, he had further stated that during course of

inculpatory extra-judicial confessional statement, Raushan had

disclosed that on the alleged date of occurrence, Sobha had gone to

Kali Mandir at about 6:00 AM. Then at para-23, he had stated that he

is not remembering whether in his presence Raushan had confessed

that Halima had said that she would complain to Didi whereupon

Raushan committed her murder. At that very time, Phupha of

Raushan was present. In para-24, he had stated that one day prior to

the occurrence he had dropped Halima at the hostel and then

thereafter, he had seen her dead body. In para-25, he had stated that

before inculpatory extra-judicial confessional statement of Raushan,

he came across the news about the incident. Paragraphs-26 and 27

happen to be contradiction. In para-28, he denied the suggestion that it

is not a fact that Sobha has got no complicity during course of crime
Patna High Court CR. APP (SJ) No.533 of 2015 dt.27-08-2018 11

of rape as well as murder of Halima and she has been implicated only

on suspicion.

16. PW-3 is Md. Meraj who happens to be son of relative

of PW-5, informant and was a student of Adarsh Children Academy.

He had stated that on the alleged date and time of occurrence, he was

coming from hostel along with Shah Nawaz and Manisha. They came

at the girls’ hostel where had seen Raushan with Halima in the room

of Madam. Raushan had directed them to go and further said that

Halima will follow them. Madam was not present in the room.

Madam was in the midst of way. She disclosed that it is time of school

so, they should go to school. Accordingly, they had gone to school.

Raushan came perplexed and asked whether Halima has come. Later

on, he came to know that Raushan and Sobha committed murder of

Halima. He had seen the dead body of Halima near bath-room of the

hostel. During cross-examination, he had stated that at that very time,

he was student of one class though was aged about 12 years. He

further disclosed that Halima was student of LKG. Raushan was

student of Class-7. Sobha Devi was residing west to road and was

running girls’ hostel. Boys’ hostel was east to road. About 30-40 boys

were residing in the hostel. Two teachers, namely, Vijay and Pankaj

were also residing there. Raushan was own brother of Sobha and was

residing with her. He had further stated that after putting his books in

the room, he had proceeded towards girls’ hostel. Sobha Devi met
Patna High Court CR. APP (SJ) No.533 of 2015 dt.27-08-2018 12

during midst of way and directed him to go to class but he had gone to

hostel where in the room of Sobha, he had seen Raushan and Halima.

Then thereafter, he returned back. He had further stated that Husnain

had disclosed that Sobha and Raushan had committed murder of

Halima. He had also stated that older girls were also residing in the

hostel. Then there happens to be contradiction. Then had denied the

suggestion that he was not residing at the boys’ hostel.

17. PW-4, Shah Nawaz had stated that the occurrence is

of dated 09.07.2002 at about 7:00 AM. He along with his brother were

students of said school. The had gone to see Halima at girls’ hostel as

Halima was student of Adarsh Children Academy and was residing

there. When they had gone there, they had seen Raushan and Halima

in a room of the hostel. Raushan had said to them that it is time of

school, what you people are doing, whereupon they returned back.

While he was sitting in class, Raushan came in a puzzled state and

inquired about Halima. On the same day, when they have visited the

girls’ hostel, they came to know that Halima has been murdered. Later

on, he came to know that Raushan and Sobha have committed murder.

Sobha happens to be proprietor of the girls’ hostel. Then had said that

on the same day at morning hour, he met with Sobha in the way and at

that very time, she had directed to him to go to school as it was time

to school. On the aforesaid query, he had disclosed that they are going

to see Halima. Sobha and Raushan happen to be sister and brother. He
Patna High Court CR. APP (SJ) No.533 of 2015 dt.27-08-2018 13

came to know that Halima was raped and her murder was committed

by Raushan. At para-5, there happens to be contradiction. In para-6,

he had stated that 25-30 steps east from the girls’ hostel, boys’ hostel

lies. Hostel is behind school. Halima happens to be his maternal

cousin sister. He was residing in boys’ hostel. In para-8, he had stated

that Raushan was 2-4 years older than him. His statement was

recorded two days after the occurrence. At para-10, he had stated that

he met with Sobha on the road. He had seen the dead body of Halima

in the evening hour. There was sign of throttling around the neck of

Halima by means of wire.

18. PW-7 is Chandradeo Singh, a retired Headmaster in

whose building the hostel and the school were running. He had

deposed that school was running in his building of which Sobha was

proprietor. Occurrence took place in the aforesaid school on

09.07.2002. One minor girl who was student of that school and was

residing there in the hostel which was attached with the school, was

murdered. Police had prepared seizure list in carbon copy in his

presence over which he had put his signature. Identified. He further

disclosed that wire and other items were recovered. Santosh Kumar

has also put his signature in his presence (exhibited). During cross-

examination at para-4 he had stated that Adarsh Children School was

running in Belaganj of which Sobha Devi was the proprietor. Sobha

Devi hired ground floor of his house wherein she was residing along
Patna High Court CR. APP (SJ) No.533 of 2015 dt.27-08-2018 14

with her family. Raushan was also residing there. Few girls were also

accommodated there. On the alleged date of occurrence at about 3-4

PM, teacher Sobha Devi having a girl in her lap was weeping. After

hearing her cry, he got down. Sobha Devi used to visit temple in the

early morning. Who committed murder and how and for what he is

not knowing. Then at para-9, he had stated that his building is double

storeyed, properly fenced. At para-10, he had stated that one latrine

happens to be outside the house while another one is inside the house.

Then had shown the boundary of his house. In para-11, he had stated

that after departure of Sobha to school or temple, only her family

members remained in the house.

19. PW-8 is Bipin Kumar, a Police Inspector. He had

simply exhibited the documents prepared by C.D. Singh, the then O/C

of Belaganj as well as I/O of the case. He has further stated that C.D.

Singh suffered frequently from illness and in his absence, he was

looking after the work on behalf of C.D. Singh. At para-7, he had also

stated that he had arrested accused, Raushan and had recorded his

inculpatory extra-judicial confessional statement which happens to be

in his pen and bears his signature. Accordingly, exhibited the same.

During cross-examination, he had stated that he had not investigated

the case. However, he had filed requisition to add Section 376 IPC.

He had further stated that Raushan had confessed to be the sole

perpetrator of the crime. Sobha was not present in the hostel.
Patna High Court CR. APP (SJ) No.533 of 2015 dt.27-08-2018 15

20. During course of statement recorded under Section

313 CrPC, appellant was confronted with the incriminating material in

following way:-

” AAPKE VIRUDHA SAKSHYA HAI KI AAPNE

DINANK 09.07.2002 KO HALIMA KHATOON KI HATYA APNE

KAMRE MEIN KAR DIYA TATHA LAASH KO MAHILA HOSTEL

BELAGANJ BAZAR KE PRANGAN MEIN PHEINK DIYA” and on

this score, learned counsel for the appellant raised an objection that by

such questionnaire she has not been confronted with the situation

justifying the finding recorded by the learned lower court.

21. After going through the evidences available on the

record, it is evident that none is an eyewitness to the occurrence. So,

this case rests upon the circumstantial evidence. It is settled principle

of law that in a case based upon circumstantial evidence, the link

should be channelized in such way that there should be no other

hypothesis than the guilt of the accused. However, considering the

fact that appellant has not been found guilty for an offence punishable

under Section 302 IPC rather, under Section 201 of the IPC and for

that, one has to see the ingredients as well as whether prosecution has

succeeded in proving the case. In the case of Sukhram v. State of

Maharashtra as reported in (2007) 7 SCC 502 , it has been as

follows:-

18. The first paragraph of the Section contains the
postulates for constituting the offence while the remaining
three paragraphs prescribe three different tiers of
Patna High Court CR. APP (SJ) No.533 of 2015 dt.27-08-2018 16

punishments depending upon the degree of offence in each
situation. To bring home an offence under Section 201 of
IPC, the ingredients to be established are: (i) committal of
an offence; (ii) person charged with the offence under
Section 201 must have the knowledge or reason to believe
that an offence has been committed; (iii) person charged
with the said offence should have caused disappearance of
evidence and (iv) the act should have been done with the
intention of screening the offender from legal punishment
or with that intention he should have given information
respecting the offence, which he knew or believed to be
false. It is plain that the intent to screen the offender
committing an offence must be the primary and sole aim of
the accused. It hardly needs any emphasis that in order to
bring home an offence under Section 201 IPC, a mere
suspicion is not sufficient. There must be on record cogent
evidence to prove that the accused knew or had information
sufficient to lead him to believe that the offence had been
committed and that the accused has caused the evidence to
disappear in order to screen the offender, known or
unknown.

19. In Palvinder Kaur Vs. The State of Punjab (Rup
Singh-Caveator) this Court had said that in order to
establish the charge under Section 201 IPC, it is essential to
prove that an offence has been committed; that the accused
knew or had reason to believe that such offence had been
committed; with requisite knowledge and with the intent to
screen the offender from legal punishment, caused the
evidence thereof to disappear or gave false information
respecting such offence knowing or having reason to
believe the same to be false. It was observed that the Court
should safeguard itself against the danger of basing its
conclusion on suspicions, however, strong they may be.
(Also See: Suleman Rehiman Mulani Anr. Vs. State of
Maharashtra , Nathu Anr. Vs. State of Uttar Pradesh ,
V.L. Tresa Vs. State of Kerala ).

22. Now coming to the facts of the case inconsonance

with the ingredients so laid down by the Hon’ble Apex Court as

referred hereinabove in order to ascertain legality of the judgment

impugned, it is apparent that accused Raushan happens to be brother
Patna High Court CR. APP (SJ) No.533 of 2015 dt.27-08-2018 17

of the appellant. It is also apparent that he was residing along with the

appellant in the same hostel. It is also evident that he was student of

same school. It is also apparent that ground floor of PW-7 was taken

on hire by the appellant wherein, apart from certain portion having

under her occupation, remaining portion was being used as girls’

hostel and the deceased, Halima was one of the occupants being

student of the school run by the appellant. It is also evident that she

was murdered and before that, as per medical evidence, she was

raped. It is also evident that she was aged about seven years. It is also

evident that none had seen her coming out of the hostel. It is also

evident that her dead body was found within precinct of hostel near

wash-room by the side of drain.

23. Now only question for determination is whether the

appellant got herself actively involved in getting the evidence of the

commission of offence disappear in order to screen the main offender

or, in an alternative, she gave an information which she was knowing

the same to be false regarding the occurrence. Appellant, being the

sole proprietor of the hostel, was accountable for the welfare of the

girls who were minor kids. It is not on the record having at her end

that she had gone to Kali Mandir and remained there quite substantial

time, that means to say, that she had not disclosed on her side at

which time she returned from Kali Mandir though, PWs-3 and 4 have

stated that she met with them in the midst of way and further had
Patna High Court CR. APP (SJ) No.533 of 2015 dt.27-08-2018 18

directed that it is time of school so they should go to school which

commence from 7:30 AM. This suggests that appellant was not in a

way to school rather she was in a way to hostel. She had not offered at

her end that she had gone to school or not. That means to say, she

remained at hostel and so, she was well aware of the fact that Halima

was missing. Then in that circumstance, what was onerous duty, just

to inform the police with regard to missing of Halima at an earliest, so

that, the police would have taken proper steps at an earliest.

24. Furthermore, it is also evident that there happens to

be silence at her end whether she had visited school or not, more

particularly, in the background of the fact that when PW-5, informant,

after hearing rumour rushed to her place and inquired from her, she

disclosed that she was searching and also directed him to search.

During cross-examination of PW-5, it is evident that he was not at all

cross-examined on the score whether he met with the victim at the

school. Furthermore, there happens to be no discloser at her end that

anybody else had come inside the hostel. So, throwing of dead body

near bath room by some body else is completely ruled out. All these

things, the appellant was required to explain as per Section 106 of the

Evidence Act in the background of the fact that she was the custodian

of the girl.

25. That being so, whatever information has been given

by her that she was searching as Halima had gone missing to the PW-
Patna High Court CR. APP (SJ) No.533 of 2015 dt.27-08-2018 19

5, is the information satisfying one of the ingredients of Section 201

of the IPC being false. That being so, the judgment impugned of

conviction rendered by the learned lower court is confirmed.

26. However, from the record it is also evident that

appellant has become widow during intervening period and further

has got liability of siblings to discharge, on account thereof, the

sentence so inflicted by the learned lower court is reduced and

commuted to RI for 2 years retaining fine amount with default clause.

It is also directed that the period having been undergone by the

appellant is, accordingly, set off in accordance with Section 428 CrPC

and in terms thereof, sentence is modified.

27. Appellant is on bail, her bail bond is hereby cancelled

directing her to surrender before the learned lower court to serve out

the remaining sentence within a fortnight failing, which the learned

lower court will proceed against her in accordance with law.

(Aditya Kumar Trivedi, J)
perwez

AFR/NAFR AFR
CAV DATE N/A
Uploading Date 30.08.2018
Transmission 30.08.2018
Date

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