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2013 DIGILAW 21 (GAU)

Minati Khongia v. State of Assam

2013-01-09

I.A.ANSARI, P.K.MUSAHARY

body2013
I.A. Ansari J.— 1. Aggrieved by the judgment and order, dated 30.12.2010, passed, in Sessions Case No. 120(S-S)/2008, by the learned Additional Sessions Judge (FTC), Sivasagar, convicting the accused-appellant under sections 302 and 201, IPC and sentencing her to suffer, for her conviction under section 302, IPC, imprisonment for life and pay fine of Rs. 2,000 and, in default of payment of fine, suffer simple imprisonment for a period of 2 months and also sentencing her to undergo, for her conviction under section 201, IPC, rigorous imprisonment for a period of five years with fine of Rs. 1,000 and, in default of payment of fine, suffer simple imprisonment for a period of ope month, the convicted person has preferred this appeal. 2. We have heard Ms. B. Bhuyan, learned amicus curiae, We have also heard Mr. Z. Kamar, learned Public Prosecutor, Assam. 3. The case of the prosecution, as unfolded at the trial, may, in brief, be described as under : (i) Accused Minati Khongia, a widow, gave birth to a male baby on 11.9.2009, but she caused death of her baby by putting her hand on the baby's mouth and making, the baby suffocate to death. The act of the causing of death of the baby was seen by PW2, who had been called to the house of the accused-appellant by Putul Khongia, son of the accused Minati, by telling PW2 that his mother was suddenly feeling unwell. On noticing accused Minati smothering her baby, PW2 came out of the house of the accused, when accused Minati, despite being resisted by PW2, continued to make her baby suffocate by placing her (accused Minati's) hand on her baby's face. Soon, thereafter, PW3, on being informed by Gunin Khongia, elder son of accused Minati, that his mother had been caught by ghost, went to the house of accused Minati and, in her presence, accused Minati buried the baby at the courtyard of her house. On coming out of the house of the accused, both PW2 and PW3 informed their co-villagers that accused Minati had killed her baby and buried the dead body. On coming out of the house of the accused, both PW2 and PW3 informed their co-villagers that accused Minati had killed her baby and buried the dead body. A meeting was accordingly called at the local club and accused Minati and also and her co-accused/ Rajib Gogoi, were called there and, on being asked by the local inhabitants of the said village, accused Minati admitted to have killed her baby and also admitted to have buried the dead body. An information, as regards the occurrence, was, then, given, in writing, by PW1 to the Officer in-Charge, Namti Police Station. Treating the said written information as First Information Report ('FIR'), Namti Police Station Case No. 23/2007 was registered, under section 302/201 IPC, against the accused-appellant, Minati Khongia, and her co-accused, Rajib Gogoi. (ii) During the course of investigation, police visited the house of accused Minati and at her instance, and on being shown by her, the ground, within the compound of the house of the accused-appellant, was dug and the dead body of the said baby was recovered. Inquest was held over the said dead body and the same was also subjected to post mortem examination. The report of the post mortem examination revealed that the baby died as a result of asphyxia. On completion of investigation, police laid charge-sheet against both the accused under section 302/ 201/34, IPC. 4. At the trial, when charges, under section 302, IPC and section 201, IPC read with section 120B, IPC, were framed against the accused persons, both of them pleaded not guilty thereto. 5. In support of their case, prosecution examined altogether ten witnesses. Both the accused were, then examined under section 313, Cr.PC. As far as accused Minati was concerned, she, while admitting to have buried the dead body of the baby, denied that she had killed the baby. Upon finding the co-accused, Rajib Gogoi, not guilty of the offence, which he stood charged with, the learned trial court acquitted him accordingly. Having; however, found the present appellant guilty of the offences under section 302, IPC and section 201, IPC, the learned trial court has convicted her accordingly and passed sentences against her as mentioned above. Aggrieved by her conviction and the sentences, which have been passed against her, accused Minati, as a convicted person has preferred this appeal. 6. Having; however, found the present appellant guilty of the offences under section 302, IPC and section 201, IPC, the learned trial court has convicted her accordingly and passed sentences against her as mentioned above. Aggrieved by her conviction and the sentences, which have been passed against her, accused Minati, as a convicted person has preferred this appeal. 6. While considering the present appeal, it needs to be noted that PW2 has been examined by the prosecution as the sole eye-witness to the alleged occurrence of killing of her baby by the accused-appellant. 7. A careful scrutiny, however, of the evidence of PW2 shows that she has given three different versions of what she had known about the alleged killing of the baby by the accused-appellant. In her examination-in-chief, PW2, initially, deposed that on being called by the accused-appellant's son, Putul Khongia, by saying that his mother, (i.e., the accused-appellant) was unwell, when she went inside the house of the accused-appellant, she found that the accused-appellant had given birth to a baby and, in her presence, the accused-appellant, according to the evidence of PW2, put her hand on the face of the baby in order to make the baby suffocate to death and, despite the fact that PW2 offered resistance, when the accused-appellant did not remove her hand from the face of the baby, PW2 came out of the house and informed her co-villagers about the incident and a meeting was accordingly called. 8. In her cross-examination, however, PW2 has claimed that when she went to the house of the accused-appellant, she did not find any other person in the house of the accused-appellant and that in her presence the accused-appellant caused her baby's death. At yet another place in her cross-examination, PW2 has, in no uncertain words, deposed, surprisingly enough, that she had not herself witnessed the occurrence. 9. In the face of such varying, inconsistent and incoherent evidence, as PW2 has given, this court finds that her evidence was too unsafe and ought not to have been relied upon. 10. At yet another place in her cross-examination, PW2 has, in no uncertain words, deposed, surprisingly enough, that she had not herself witnessed the occurrence. 9. In the face of such varying, inconsistent and incoherent evidence, as PW2 has given, this court finds that her evidence was too unsafe and ought not to have been relied upon. 10. The other circumstance, which has been heavily relied upon by the prosecution and has been given credence and heavily weighed with the learned trial court in finding the accuse appellant guilty of the offence of murder, is the fact that PW1, PW3, PW4, PW5 and PW6 have deposed to the effect that a meeting was called in the village and to the meeting, so convened, the accused-appellant and her co-accused, Rajib Gogoi, were called, both of them came there and, on being asked by the people, who were present at the said meeting, the accused-appellant admitted that she had killed her baby and buried the dead body of the baby. 11. While considering the learned trial court's findings and conclusion of guilt of the accused-appellant on the basis of the evidence of PW1, PW2, PW3, PW4, PW5 and PW6 to the effect that the accused-appellant had confessed, as indicated above, that she had killed her baby, we deem it necessary' to point out that though the prosecution heavily relied, and so did the learned trial court, on the evidence of PW1, PW3, PW4, PW5 and PW6 given to the effect that the accused-appellant had confessed, in the meeting, while being asked by her co-villagers, about the killing of her baby, one cannot ignore the fact that a confession, in order to become basis of conviction of an accused, must be proved to be 'voluntarily' and 'true'. If the defence succeeds in making it appear to the court, or if it appears to the trial court, that the confession is not voluntary, it would be sufficient for the trial court to discard the confession as a whole and it would no longer be necessary, in such a case, to determine if the confession is or is not true. 12. 12. While considering the above aspect of the evidence, one can also not ignore the fact hat the evidence of PW6 shows that apart from male persons, there were about 60/70 female persons present in the said meeting and that the total number of people, so present in the said meeting, was as high as 150. It is important to bear in mind that it is not the case of the prosecution that the accused-appellant had volunteered to confess that she had killed her baby and buried the dead body. Far from this, the evidence on record discloses that the accused-appellant was called to the said meeting and, in the presence of such a large number of persons, as indicated hereinbefore, when she was questioned, she responded by admitting that she had killed her baby and buried the dead body. This admission of the accused-appellant of her guilt in respect of the offences, which she stood charged with, amounts to confession and since the confession had not been volunteered by the accused-appellant, but had been elicited by her co-villagers by questioning her, the confession, so made by the accused-appellant, ought not to have been treated as voluntarily made confession. In this regard, it is imperative to note that section 24 of the Evidence Act, clearly lays down as under : "A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the court to have been caused by any inducement, threat or promise, having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the court, to give the accused person grounds, which would appear to him reasonable, for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceeding against him." 13. A bare reading of section 24 of the Evidence Act shows that a confession is irrelevant if the confession 'appears' to the court to have been caused by any inducement, threat or promise, having reference to the charge against the accused person. The use of the expression, "appears", in section 24 of the Evidence Act, clearly reflects the legislative intent that involuntariness of a confession is not required to be convincingly proved. The use of the expression, "appears", in section 24 of the Evidence Act, clearly reflects the legislative intent that involuntariness of a confession is not required to be convincingly proved. It would be sufficient to make a confession inadmissible if it 'appears' to the court that the confession has been caused by inducement, threat or promise. No positive state of mind or conclusion is required to be reached by a trial Judge in order to reject a confession as involuntary if the circumstances of a case make it 'appear' to the court that the confession made was not voluntary. 14. To put it a little differently, section 24 of the Evidence Act uses the expression 'appear' and not the word 'prove'. A-confession, therefore, need not to be proved to be involuntarily made. It would discharge the burden of the defence if it succeeds in making it 'appear' to the court that the confession is involuntary in the sense that the possibility of the confession having been made by inducement, threat or promise cannot be ruled upon. 15. Situated, thus, we do not find that the confession of the accused-appellant, in a case of present nature, could have been safely relied upon. 16. Even if, however, the evidence, given by PW2 and also the confession, which the accused-appellant is alleged to have made, are kept excluded from the purview of one's consideration as unsafe to ace reliance upon, there are still incriminating circumstances available on record against the accused-appellant inasmuch the evidence given by PW7, who is the doctor and who had admittedly conducted the postmortem examination, shows that he found as follows : "External appearance: Subject is a small, newborn baby. Rigor mortis is slightly present. Tongue is protruded. Pechial haemorrhage are found on the face, eyelids and forehead. Bloody discharge came out from mouth and nostril. Lips are swelling and congested. Cranium and spinal canal: All the organs are congested. Thorax and cartilages are healthy. Plura, larynx and are congested. Both the lungs are markly congested. Some area of cehymosis are seen on both the lungs. A piece of lung is out and put in to a water pot. The lung piece floats. Pericardium is congested. Right side of the heart is full of blood and left side is empty. Abdomen : All the organs are healthy, but congested. Smothering means blocking of respiratory organ. Some area of cehymosis are seen on both the lungs. A piece of lung is out and put in to a water pot. The lung piece floats. Pericardium is congested. Right side of the heart is full of blood and left side is empty. Abdomen : All the organs are healthy, but congested. Smothering means blocking of respiratory organ. The death is definitely homicidal, appropriate time of death of the deceased being about 72 hrs." 17. In the opinion of the doctor, the cause of death was asphyxia as a result of blocking of internal respiratory aurifish, i.e., its smothering. 18. In the face of the cogent medical evidence on record, which could not be shaken by the defence, there can be no escape from the conclusion that the said baby was smothered and killed. The question, however, remains if it was the accused-appellant, who had caused her baby's death? 19. While considering the question, posed above, one has to also take into account the fact that the evidence of PW8, PW9 and PW10 clearly shows that when PW10, as Investigating Officer, came to the house of the accused-appellant and made inquiries from her, she. showed the place, within the compound of her house, dug the place there and took out the dead body of her baby and it was this dead body, which was subjected to post-mortem examination. The recovery of the dead body, at the instance of the accused-appellant, was not denied by the accused-appellant, while she was examined under section 313, Cr.PC. 20. Thus, when the said baby was, in the light of the medical evidence on record, killed by making her suffocate to death, it can be safely concluded that it was to screen the offender, that is the person, who had killed the baby, that the accused-appellant had buried the dead body of her baby. Thus, an offence, under section 201, IPC, was clearly proved to have been committed by the accused-appellant. 21. However, so far as the conviction of the accused-appellant under section 302, IPC, is concerned, the learned trial court has taken into account the fact that the accused knew as to where the dead body of her baby was. Thus, an offence, under section 201, IPC, was clearly proved to have been committed by the accused-appellant. 21. However, so far as the conviction of the accused-appellant under section 302, IPC, is concerned, the learned trial court has taken into account the fact that the accused knew as to where the dead body of her baby was. The fact, that the accused-appellant knew as to where the dead body was, could not have been stretched to mean that she had put her baby to death, particularly, when the house of the accused-appellant was, admittedly, inhabited not only by the accused-appellant but by others as well. 22. The totality of circumstances, as we have discussed above, do not permit us to hold that the accused-appellant was proved, beyond all reasonable doubt, to have caused the death of her baby. 23. Situated, thus, the learned trial court, in our considered view, ought to have given, at least, benefit of doubt to the accused-appellant so far as the charge, under section 302, IPC, was concerned. 24. Because of what have been discussed and pointed out above, while we uphold the conviction of the accused-appellant under section 201, IPC, we do not find the evidence on record sufficient and conclusive in nature proving the accused-appellant guilty of the offence under section 302, IPC. We, therefore, acquit the accused-appellant of the charge framed against her, under section 302, IPC, on benefit of doubt. 25. For her conviction under section 201, IPC, the accused-appellant has been sentenced to suffer rigorous imprisonment for five years with fine of Rs. 1,000 and, in default of payment of fine, to suffer simple imprisonment for one month. We are of the view that, in the facts and attending circumstances of the present case, particularly, when the accused-appellant is mother of two more children, that the sentence of two years of rigorous imprisonment with fine of Rs. 2,000 and, in default of payment of fine, rigorous imprisonment for a period of three months would meet the ends of justice. 26. In the result and for the foregoing reasons, this appeal partly succeeds. The impugned judgment and order shall accordingly stand set aside to the extent that the same relates to conviction of the accused-appellant trader section 302, IPC and the consequential sentence, which was passed against the accused-appellant. 26. In the result and for the foregoing reasons, this appeal partly succeeds. The impugned judgment and order shall accordingly stand set aside to the extent that the same relates to conviction of the accused-appellant trader section 302, IPC and the consequential sentence, which was passed against the accused-appellant. We,, however, uphold the conviction of the accused-appellant under section 201, IPC, but reduce her sentence to a period of two years rigorous imprisonment and fine of Rs. 200 and, in default of payment of fine, undergo simple imprisonment for a period of three months. The accused-appellant shall remain entitled to the benefit of set off as embodied in section 428, Cr.PC. 27. With the above observations and directions, this appeal stands disposed of. 28. Let the learned amicus curiae be paid a sum of Rs. 5,000 for her valuable assistance rendered to the court. 29. Send back the LCR.