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IN THE HIGH COURT OF ALLAHABAD
Sunita Agarwal, Deepak Verma, JJ.
Smt. Sohbatti – Appellant
Versus
State of U.P. – Respondent
Criminal Appeal No. 1435 of 1997
Decided On : 24-02-2020
Indian Penal Code, 1860 – Sections 201, 302 – Missing report was lodged by wife that her son aged about 5 years had gone missing – She alongwith other villagers had searched for child but they could not find him – First information report was lodged to state that his missing son was found dead and his dead body was recovered after much efforts from a pond behind her house – Postmortem was conducted – Doctor had opined estimated time of murder about three days back. – Judgment and order by which the appellant has been convicted for offence under Section 302 I.P.C. and sentenced for life imprisonment and for the offence under Section 201 I.P.C. convicted and sentenced for five years – Held, Court is not finding answer to question either way, in negative or in affirmative –Court is also afraid to give answer to said question in absence of any cogent material before us – For mere reason that Court are not finding real culprit, Court cannot draw inference that appellant must have committed the crime –Court find that judgment is not sustainable in the eyes of law and is liable to be set aside – Judgment and order passed by the Special Judge, convicting and sentencing the accused-appellant Smt. Sohbatti, under Section 302/201 I.P.C. is set aside and the accused-appellant is acquitted of all the offences/charges – Appeal allowed(Paras 39 to 42).
Facts of Case
Missing report was lodged by wife that her son aged about 5 years had gone missing – She alongwith other villagers had searched for child but they could not find him – First information report was lodged to state that his missing son was found dead and his dead body was recovered after much efforts from a pond behind her house – Postmortem was conducted – Doctor had opined estimated time of murder about three days back. – Judgment and order by which the appellant has been convicted for offence under Section 302 I.P.C. and sentenced for life imprisonment and for the offence under Section 201 I.P.C. convicted and sentenced for five years.
Findings of Court
Court is not finding answer to question either way, in negative or in affirmative –Court is also afraid to give answer to said question in absence of any cogent material before us – For mere reason that Court are not finding real culprit, Court cannot draw inference that appellant must have committed the crime –Court find that judgment is not sustainable in the eyes of law and is liable to be set aside – Judgment and order passed by the Special Judge, convicting and sentencing the accused-appellant Smt. Sohbatti, under Section 302/201 I.P.C. is set aside and the accused-appellant is acquitted of all the offences/charges.
Result: Appeal allowed
JUDGMENT :
1. Heard Sri Surendra Bahadur Singh learned Advocate on behalf of the appellant, Sri L.D. Rajbhar and Sri Prem Shankar Mishra learned Additional Government Advocates on behalf of the State and perused the record.
2. The present appeal is directed against the judgment and order dated 28.7.1997 in Sessions Trial No. 185 of 1996 (State vs. Smt. Sohbatti Devi), arising out of Case Crime No. 07 of 1996, under Section 302/201 I.P.C., Police Station-Bakhira, District-Basti by which the appellant Smt. Sohbatti wife of Sri Ram Nath, resident of Village Bardad, Police Station Bakhira, District Basti has been convicted for offence under Section 302 I.P.C. and sentenced for life imprisonment and for the offence under Section 201 I.P.C. convicted and sentenced for five years. Both the sentences are directed to run concurrently.
The events in the prosecution story go on as under:-
3. A missing report dated 13.1.1996 was lodged by Smt. Kumari Devi wife of Phoolbadan, resident of Village Bardad, Police Station Bakhira, District Basti to state that her son Rajendra aged about 5 years had gone missing around 6:00 PM on 12.1.1996. She alongwith other villagers had searched for the child but they could not find him.
4. A first information report dated 16.1.1996 scribed by Rajdev Yadav son of Ramkewal Yadav was lodged by Smt. Kumari Devi wife of Phoolbadan to state that his missing son was found dead and his dead body was recovered after much efforts from a pond behind her house at around 10:00 AM on 16.1.1996 itself. The body was recovered with the help of villagers named as Janardan son of Ram Bachan, Ram Chandra son of Shiv Baran, Pradhan Sundar @ Chunnur son of Ghisai and Up-pradhan Jayram son of Manohar. She raised suspicion that her sister-in-law Sohbatti wife of Ram Nath had murdered her son Rajendra and concealed his dead body in the pond. The motive for murder as narrated therein was to grab all landed property of the first informant. It is stated that whenever there was altercation between the first informant and her sister-in-law, the accused used to threaten that she would kill both the first informant and her son. The report further states that body of the child (her son) after recovery had been kept besides the pond. The said written report was exhibited as Exhibit 'Ka-1'. The first information report was registered as Chik report (Exhibit Ka-2) at around 02:00 PM on 16.1.1996 under Sections 302/201 IPC. The date and time of the incident as reported therein is 12.1.1996 around 6:00 PM. The search memo dated 16.1.1996 (Exhibit Ka-14) indicates that search was conducted for the accused/appellant but no incriminating article was found nor the accused/appellant was found. 'Exhibit Ka-15' is the memo of receipt of the torch belonging to the witness Phoolmati who stated that she had witnessed the accused with the child (deceased) alive on the day of missing in the light of the torch. The postmortem was conducted on 17.1.2996 at around 3:00 PM. The Doctor had opined the estimated time of murder about three days back.
5. The findings on external examination of the dead body are:-
Average build body of the child about five years. Body covered with dry mud and sand particle. Wrinkles are present on skin at both palm and sole & foot, face cyanosed, Eyes congested, Bloody froth coming from both the nostrils, mud & sand under nails of hand and foot absent rigor mortis passed off from all the four limbs.
Ante mortem injuries:-
(1) Abrasion 1x0.5 cm on bridge of nose 0.5 cm below root of nose, horizontal;
(2) Abrasion 1x0.5 cm on bridge of nose obliquely present 1.0 cm below injury no. 1;
(3) Multiple abrasion in area of 6x1.5 cm on left side of face 2c.m. front of left ear tragus.
(4) Abrasion 2.5 cmx0.5cm on lower lip both sides;
(5) abraded contusion 5x2.5 cm in front of neck 1.5 cm above sternal notch in mid & both sides.
The conditions of internal organs indicated in the report shows the cause of death due to asphyxia as a result of strangulatio
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