1. This appeal is directed against the judgment dated 23rd February, 1977, passed by the learned Sessions Judge, Alwar in Sessions Case No. 100 of 1976. The appellant has been convicted under Section 302 IPC and sentenced to rigorous imprisonment for life and a fine of Rs. 500/-. She has also been convicted under Section 309 IPC and sentenced to under go one year's rigorous imprisonment. In default of payment of fine, she was further directed to undergo rigorous imprisonment for four months.
2. The prosecution story unfolded during the trial is that the appellant was living with her husband in village Dholidhup. There was a terror and the family of the appellant left village DholiDhup and established in village Kheri. The prosecution case further goes that the family members of the accused appellant purchased agricultural land from one Om Prakash. The amount of the land could not be paid to the seller of the land and, as such, the silver Karas of Mst. Rahmani were taken away by her husband for selling in the market and for making the payment to (5m Prakash. It is further alleged that Mst. Rahmani was not happy on this and, as such, she jumped in the well with her child, Fakru, aged 4-5 months. Before jumping with her child she threw two other childern into the well.
3. On behalf of the prosecution, P.W. 2 Nawab is the eye witness, PW 1, Subhan Khan lodged First Information Report at the Police Station which is marked as Ex. P. 1. Learned counsel for the appellant has invited our attention to the statements of PW 3 Susala and PW 7, Sahuri. Both these witnesses have stated that Rahmani gave the silver Karas voluntarily and there was no dispute and she was living peacefully. She has thus demolished the theory of motive for the commission of the crime and we are of the view that the prosecution has failed to prove any motive.
4. PW 2 Nawab, is the child witness of 7 years. He is only the eye witness of the occurrence. In his examination he has stated the case of prosecution by saying that his aunt threw her two childern in the well, thereafter, she jumped into the well with her youngest child in her lap. However, in cross examination, he has stated that he has not seen anything. He saw only his aunt falling into the well. He has further stated that he did not see, Majid, Jarri and Fakru falling in the well. He has further stated that his aunt, the present appellant, was taking bath. Nawab is a child witness and thus, he has given two versions: one in favour of the prosecution in the examination-in-chief and another in favour of the appellant in the cross-examination. A conviction should not ordinarily be based on the statement of a child witness, particularly in this case, when two versions have been given by the child. We are not prepared to accept the version which has been given in favour of the prosecution. The testimony of Nawab, PW 2 cannot be relied upon.
5. The other set of witnessess, namely; PW 1, Subhan Khan, has stated that when he went to the temple of Hanumanji for drinking water, there he saw Babaji Asha Singh, Puran and Ramogtar, Nawab came there and informed that his aunt has fallen in the well. He is the author of the First Information Report.
6. PW 3 Susala, the husband of the appellant, has stated that he was informed that:
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7. PW 8, Puran, has stated that the child came running and informed that his aunt has fallen into the well and she has also thrown away her children into the well. This statement can only be used for corroborating the statement of Nawab, PW 2, but Nawab has not stated as this witness has stated. On the contrary, Nawab has stated in his cross examination that he had not seen the children falling down in the well. He had seen only her aunt falling in the well. Thus, from the evidence on record, we are not satisfied that the prosecution has been able to prove that the children were thrown in the well by Mst. Rahmani, the present appellant. However, we will have to take into consideration the statement given by Mst. Rahmani under Section 313 Cr.P.C.
8. Mst. Rahmani, the appellant, has stated that her two children were playing nearby the well and she was taking the bath. She has further stated that there was an effect of cyclone and her two children fell down in the well. As soon as she saw them, falling in the well, she ran towards the well to save them. She had a child of 4 to 5 months in her lap and she jumped into the well only with the intention to save her two children. From the perusal of her statement under Section 313 Cr.P.C. it seems that the explanation given by Mst. Rahmani may be probable.
9. She had knowledge that the child of 4 to 5 months was in her lap and she jumped in the well to save her two children who fell down in the well. She may not be having the intention of committing murder of her third child, but she had the knowledge that she would not be able to save her children who had already fallen in the well, but about the third child who was in her lap, she had the knowledge and with this knowledge she jumped into the well. So the knowledge can be attributed that she was responsible for causing the death of her third child.
10. As far as two children are concerned we are of the view that the prosecution has failed to prove any case against her, so she is acquitted on that count. As far as her third child, who was in her lap is concerned we are of the view that instead of convicting her under Section 302 IPC, she should be convicted under Section 304, Part II IPC.
11. In the result, we accept the appeal of the appellant in part, set aside the conviction and sentence under Section 302 IPC, as the conviction under Section 309 IPC. We hereby convict the present appellant under Section 304, Part II, IPC. She has remained behind the bar for a pretty long time. It will not be in the interest of justice to send her back to the prison.
12. Mr. Walia submits that the accused appellant has remained in jail for more than 5-6 years Taking into consideration the conviction under Section 304, Part II, and looking to the fact that she has already remained behind the bar for more than 6 years, she is entitled to the benefit of Section 428 Cr.P.C. Looking to the submission of Mr. Walia it is directed that before the issuance of warrants it should be verified that whether the accused appellant has remained in jail for a period of four years or not and, if it is found that she has remained in jail for a period of four years, then no warrants should be issued for her arrest.