JUDGMENT Aftab H. Saikia, J. 1. Heard Mr. H. Sharma, learned Amicus Curiae appearing on behalf of the appellant as well as Mr. K.A. Mazumdar, learned Public Prosecutor, Assam. 2. This jail appeal has been preferred by the appellant from jail questioning the legality and correctness of the judgment and Order dated 31-12-2001 passed by the learned Additional Sessions Judge (Ad hoc), Jorhat in Sessions Case No. 111 of 2000 whereby the appellant was convicted under Section 302, IPC and sentenced to undergo rigorous imprisonment (for short, RI) for life and to pay fine of Rs. 100/- in default, further RI for one month. 3. The facts of the case in brief as unfolded by the prosecution are that, the daughter of the appellant, the Court Witness No. 1 (C.W. 1) sometime in the month of February, 2000, gave birth to an illegitimate girl child in consequence of rape committed on her. When the said illegitimate child was merely three months old, the appellant and her daughter along with the child went to the residence of P.W. 1 (Maniram Majhi) at Kakajan to stay there. Unfortunately, while they were staying in the residence of P.W. 1, as being his guests, the daughter of the appellant got seriously ill for which she needed to be hospitalized at Kakajan Tea Garden Hospital. The girl child was under care and custody of the appellant at that time. The child allegedly killed by the appellant by throwing the baby into the river. The dead body of the girl child was found in rivulet at Toklai. It was alleged that the girl child was killed by her grandmother, the appellant. The Doctor, P.W. 8 (Dr. Manik Ch. Das) who rendered medical assistance to the appellant who was brought on 23-5-2000 by the local residents for treatment in the hospital after, having been beaten her up, lodged an ejahar with the police at Deberapar Police Out-post under Mariani Police Station in the district of Jorhat on the same day i.e. on 23-5-2000 and at that time according to the Doctor the appellant was holding the dead body of the child in her arms. Police started investigation and on completion of the same submitted charge-sheet against the appellant under Section 302, IPC. 4. Police started investigation and on completion of the same submitted charge-sheet against the appellant under Section 302, IPC. 4. During the trial before the Sessions Court, before which the case was committed, being the case exclusively triable by the Court of Sessions, the prosecution examined as many as 8 witnesses including 3 official witnesses, namely, P.W. 5 (Dr. Pulakananda Bharali) and P.W. 8 (Dr. Manik Ch. Das), the doctors who conducted the autopsy on the dead body of the child as well as administered medical treatment to the appellant due to her injury sustained on beating up by the people, respectively and P.W. 7 (Prafulla Kr. Das), the investigating officer (for short I/O). The Court below also examined the daughter of the appellant/mother of the deceased girl child as Court Witness being C.W. 1. The appellant was also examined under Section 313, Cr. P.C. 5. Having carefully considered the evidence of the witnesses and other relevant materials, the learned Sessions Judge found the appellant guilty of the offence of killing the girl child of C.W. 1 and handed down the impugned conviction and sentence as noticed hereinabove. 6. The death of the girl child by drowning was proved by medical evidence of P.W. 5 who performed post-mortem on the dead body of the girl child aged about 3 months and on such examination he found the following injuries on the person: No external wounds were detected. Pleurae are congested. Larynx and Trachea are congested. Muds and sands articles seen in larynx and trachea. Both lungs are voluminous on Section both lungs are oedematous and large amount of watery frothy blood stained fluid seen. Tongue was found swollen. Fine reddish white froth present in mouth and pharynx. The Doctor in his opinion stated that the cause of death was Asphyxia as a result of ante-mortem drowning and it occurred within 24 hours of his examination of the dead body. 7. In the backdrop of the above medical evidence, we have carefully evaluated and appreciated the testimony of such witnesses so examined by the prosecution mainly of P.W. 1 (Maniram Majhi), P.W. 2 (Tufan Tanti), P.W. 3 (Devi Hemram) and P.W. 4 (Loska Majhi). 8. P.W. 1, who was the uncle of the appellant deposed that the C.W. 1 the daughter of the appellant gave birth to a girl child when she was still unmarried. 8. P.W. 1, who was the uncle of the appellant deposed that the C.W. 1 the daughter of the appellant gave birth to a girl child when she was still unmarried. Both the appellant and her daughter, C.W. 1 came to his house with the baby child and stay in his house for a week. Meanwhile, C.W. 1 felt sick and she was hospitalized. On the day of occurrence he and his family members were not present in his house. When he reached home in the afternoon, he did not find the appellant and the baby in his house. While he was sitting in his house, his daughter told him that lot of people had gathered on the bank of the river Lahing and the dead body of the infant was recovered from the river with the help of the fishing net. After hearing that he along with his daughter went to the spot. There were many people on the bank of the river. He saw dead body of the baby child of C.W. 1 lying there. They caught the appellant and took her near the dead body and when they asked her, she said that she had killed the baby adding that the baby was an illegitimate child of her daughter. Later on, he along with the people brought them to the hospital. The Doctor enquired and informed the police and police came and interrogated the appellant and then also she told the police that she killed C.W. l's baby by throwing her into the river. Police took away the dead body and arrested the appellant. Investigating Officer took away the dead body of the baby child to the civil hospital and arrested the accused. In cross, this witness categorically stated that he was not present at home and at the time of recovery of the baby child from the river and none of his family members was present at the time of occurrence. He also deposed in cross that he did not see the appellant when the baby child was taken away by her. When the appellant was asked her after the occurrence why she killed the baby she confessed that she had killed the baby as it was an illegitimate child. He denied the suggestion that when police asked him, he did not tell the police that he had questioned the appellant. When the appellant was asked her after the occurrence why she killed the baby she confessed that she had killed the baby as it was an illegitimate child. He denied the suggestion that when police asked him, he did not tell the police that he had questioned the appellant. He also clarified that he did not tell the police out of fear about the appellant telling him that she killed the baby as it was illegitimate child. A specific mention has been made in cross by this witness that the appellant did not tell before him but before the police that she had killed the child as it was an illegitimate child. 9. Having closely appreciated this witness, it would candidly appear that he has contradicted his statement made in examination-in-chief as well as in cross-examination. That being the position, we are in full agreement not to rely on this witness as regards the alleged confession made by the appellant about killing of the baby child and the subsequent confession made by the appellant before the P.W. 1 as well as the police. 10. In so far as the P.W. 2 is concerned, it appears that this witness at around 6.00 p.m. on the day of occurrence saw some people chasing the appellant towards the hospital. The appellant at that time was with a baby in her hands. He immediately put the appellant in an operation room of the hospital and keeping her there closed the door and informed the Doctor. After a while, P.W. 8, the Doctor came and examined the child and declared the child to be dead. They informed the police and police came and took away the baby. According to this witness the baby child was 1 1/2/2 months old infant. 11. P.W. 3 testified that he along with one Loska Majhi, P.W. 4 while coming from their work in one evening after crossing the river Toklai, he saw a dead body floating in the meeting point of Toklai river and Janaki river. The dead body was floating with the legs that seemed to be those of an infant, immediately, Loska and he went down into the river and took out the dead body from the water. The dead body was floating with the legs that seemed to be those of an infant, immediately, Loska and he went down into the river and took out the dead body from the water. Putting the dead body in the bank of the river Toklai they went to inform the office of the Tea Garden and also informed the villagers telling them that they left the dead body of the child in the tea garden on the bank of the river. On their return from tea garden, they saw many people gathered in the spot. The appellant also came there. The people present there took the appellant along with the dead body towards the tea garden and the appellant was abused by the people. This witness was not cross-examined by the prosecution. P.W. 4 also narrated the same story as deposed by P.W. 3. 12. On the other hand P.W. 8, the Doctor who examined the appellant after being brought before him by the local people after beating her along with a baby in her arms, in his deposition told that after examining the baby girl, he declared the baby brought dead. According to him, when he asked the appellant she told him that she caused the death of the baby and she killed the baby by throwing into the water. He also told that at the relevant time the mother of the baby of C.W. 1 was undergoing treatment in their hospital. She was in a critical stage. He stated that the said dead body was the appellant's daughter's baby and since the baby was illegitimate one the appellant killed the baby. He categorically mentioned that the appellant confessed before him "since my grandchild is a bastard child and I am having difficulty in feeding and maintaining her, I have killed her". This witness lodged the ejahar with the concerned police station mentioning everything including the confession made by the appellant. The ejahar was exhibited as Exhibit-3. In cross, he mentioned that although the appellant confessed to have killed the girl child by throwing into the water, he did not write about in detail in the ejahar. He denied the suggestion that the people brought her by beating up and before the police, she out of fear, confessed before him that she had killed the baby. 13. In cross, he mentioned that although the appellant confessed to have killed the girl child by throwing into the water, he did not write about in detail in the ejahar. He denied the suggestion that the people brought her by beating up and before the police, she out of fear, confessed before him that she had killed the baby. 13. The testimony of C.W. 1 has also been thoroughly examined wherein she expressed that there was a boy called XXX near their house often visited their house. Her father was working in the tea garden and her mother was a daily wage earner and she was a handicapped girl and stayed alone in her house. Very often the boy used to visit their house and taking the advantage of the absence of her parents, he raped her against her wish. She could not make hue and cry as her voice was also not clear. Her entire left side was also paralyzed. As a result of such rape on her, she became pregnant and she gave birth to a girl child. After the birth of child she used to stay with her parent's house. She categorically stated that she did not tell anybody about the person responsible, out of fear. When the baby child was 5 months old, she fell ill and she was hospitalized. She came to know later on that her child died when she was in the hospital. But nobody tell her how her baby had died. It is recorded by the learned Judge that C.W. 1 was an unfortunate handicapped girl and her level of intelligence appeared to be quite low. 14. We have also appreciated meticulously the statement of the appellant recorded under Section313, Cr. P.C. wherein against Question No. 37, she replied that she was a poor woman and her husband was aged and ailing and a poor fellow. Her daughter, C.W. 1 was also ailing one and she was wronged by her neighbour as a result of which an illegitimate child was born. In the noontime on the day of occurrence when she along with the baby of C.W. 1 on way to home, her grand child drowned on the rivulet Toklai as she was tired returning from work and felt dizzy on her head as a result of which the girl child fell into the water. She did not kill her grand child. She did not kill her grand child. We have also examined the evidence of P.W. 7 (Prafulla Kr. Das), the I/O. 15. After having scrupulous evaluation of the evidence on record and witnesses mentioned above, we do find that no attempt has been made at any stage to record the so-called confession made by the appellant before P.W. 1 and P.W. 8, the Doctor who examined and treated the appellant in the hospital along with her a child in her arms. P.W. 8 in his cross-examination stated that though the appellant confessed to them about the killing of the girl child, he did not mention it in the ejahar so lodged by him with the police. In his chief, he categorically stated that after lodging of the ejahar, the police came and took the dead body and the accused. But at that time also he did not inform the police that she confessed before him about the killing of the baby girl child. 16. That being the factual position as emerged from the evidence of those witnesses as narrated above, we are of the firm opinion that the prosecution has failed to make out a clear case of killing of the baby girl child by the appellant by pressing into service the testimony of the prosecution witnesses as referred above. We have no hesitation to hold that the testimony of the witnesses so examined by the prosecution does not inspire any confidence to uphold the impugned conviction and sentence so handed down on the appellant. Consequently, we have no option but to quash and set aside the impugned conviction and sentence. 17. The appellant be set at liberty forth-with, if she is not required in any other criminal case. 18. In the result the appeal stands succeed and allowed. 19. Send down the LCR forthwith. 20. Before parting with the judgment, this Court would like to put on record the appreciation to Mr. H. Sharma for his valuable assistance rendered in arriving at a decision above-recorded in this case as Amicus Curiae. Accordingly, it is ordered that he is entitled to his professional fees, which is quantified at Rs. 5000/- Appeal allowed.