Roopsena Khatun vs State Of West Bengal

ROOPSENA KHATUN ...APPELLANT

VERSUS

STATE OF WEST BENGAL ...RESPONDENT

J U D G M E N T

SIRPURKAR, J.

1. This appeal is filed by an unfortunate orphan girl

against the concurrent judgments of the Sessions Court as

also the High Court whereby she stands convicted for the

offence punishable under Section 302 IPC as also under

Section 379 IPC for committing theft of a silver chain

from the body of deceased.

2. The prosecution case is that accused Roopsena

Khatun committed murder of a child called Baby Khatun by

drowning her in a pond and also removed the silver chain

from her person. It is alleged that on 29.7.1999, Baby

Khatun left her house for her grand-mother house and

thereafter, there was no trace of the girl. PW3 Abdul

Quddus told the father of the deceased that he had seen

Baby Khatun following the accused on the previous day at 10

a.m. A search was started for her and ultimately, the

accused was apprehended by the villagers on the next day at

about 12 noon in the jute field. On being asked, the

accused is supposed to have confessed that she committed

the murder of Baby Khatun by drowning her in the pond and

had also removed the silver chain from her person. The

matter was reported to the police. At about 4.45/5 p.m.,

the police arrived at the scene of occurrence and is

stated to have seized the silver chain from the accused.

3. The prosecution relied on the following

circumstances.

i) The disclosure made by the accused that she

had committed the murder and pointed out the body of

the deceased from the pond;

ii) The extra-judicial confession allegedly made to

the witnesses including the father PW1 and some other

witnesses;

iii) The recovery of silver chain from the

accused.

iv) Baby Khatun was seen following the accused at

10 A.M. on the earlier day.

4. Insofar as the first circumstance relating to the

disclosure of the accused having committed the murder and

pointing out the corpus delicti is concerned, both the

courts below have held that circumstance as a proof against

the accused on the basis of the evidence of the witnesses.

It is a common knowledge that the body could not have

remained under the water for 24 hours. The body was bound

to be floating. At least from the post-mortem report, it

is clear that the body was decomposed. Under such

circumstances, we do not think that the body could have

ever remained underneath the water level for 24 hours. It

was certainly expected to be floating. In that case, it

could be seen by anybody. Therefore, such circumstance

loses its significance.

5. The second circumstance is about the extra-judicial

confession. We can imagine the plight of a poor orphan

girl who is described as a frock wearing girl by some of

the witnesses and was at the mercy of her grand-mother

with whom she was living. The evidence of the extra-

judicial confession is of extremely week kind. In this

case, the exact words of the accused have not been uttered

by any of the witnesses. Again, if there was any suspicion

against the accused, the whole village would have pounced

upon her and cursed her of having committed the murder.

Under such circumstances, the so called extra-judicial

confession made to the witnesses even if they were more

than three, would be of no consequence and we would not

consider that as an incriminating evidence against the

accused.

6. The circumstance of the recovery of the silver

chain from the accused is extremely strange. We have seen

the seizure memo which does not suggest the place from

where the silver chain from the accused was seized. Under

such circumstances, it is very difficult for us to hold

that the accused was carrying the silver chain on her

person. The absence of any detail in the seizure memo

regarding the place from where the silver chain was seized

or also the oral evidence puts the seizure in extreme

suspicion. At any rate, we are not prepared to accept this

circumstance particularly because the said silver chain has

also not been identified by the PW 1 - father of the

deceased . There was no identification parade held

regarding the aforesaid silver chain which was an extremely

common ornament. Therefore, even that circumstance loses

its significance.

7. The last circumstance "last seen" if at all can be

used against the accused as a circumstance should have been

connected with the time of death. Here is the case when

the deceased was seen following the accused at about 10

a.m. on the earlier day whereas the body was found on the

next day at about 2.30 p.m.. The prosecution has not fixed

the time of the death also. Therefore, there is no

proximity between the time when the deceased and the

accused were last seen together and the time of the death

of the deceased. At least, the prosecution has not been

able to establish the same. Therefore, even if that

circumstance is viewed as an incriminating evidence, it

would be of no significance.

8. The depth of the pond is not shown. In what manner

could a small girl like accused have drowned the deceased

is also not shown. Considering the short distance between

the house of the deceased and the pond, the possibility of

the death being accidental cannot be ruled out.

9. The least we feel is that the prosecution has not

been able to prove the case of murder against the accused

or even for the theft of the silver chain from the person

of the deceased.

10. Before we part with this case, we must observe that

the accused in her appeal before us has mentioned that she

was 15 years of age on the date of incident. At least,

three witnesses have described the girl as frock wearing

girl. If she was a frock wearing Mohamedan girl, then,

obviously, she could not have been a major on the relevant

date. In our opinion, the Sessions Judge should have used

its discretion which he was supposed to exercise in law

and should have sent the accused for medical examination

to ascertain her exact age. The Sessions Judge has

failed in his duty. The High Court has not adverted to this

aspect.

11. Under the circumstances, we do not affirm the

judgments of the courts below. We, accordingly, set-aside

the judgments of the courts below and allow this appeal.

The accused be released from the jail forthwith if she is

not required in any other case.

......................J. [ V.S. SIRPURKAR ]

......................J. [ T.S. THAKUR ] NEW DELHI APRIL 28, 2011.