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 16punishments 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
