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Tripura High Court · body

2015 DIGILAW 20 (TRI)

Laxmi Das v. State of Tripura

2015-01-14

S.TALAPATRA, U.B.SAHA

body2015
JUDGMENT Utpalendu Bikas Saha, J. 1. The instant criminal appeal is directed against the judgment dated 30.06.2012 passed by the learned Sessions Judge, South Tripura, Udaipur in case No. S.T. 02 (ST/A) of 2009 whereby and whereunder the accused-appellant was convicted under Section302 IPC and sentenced to imprisonment for life and to pay a fine of Rs. 1,000/- i.d. to suffer further RI for one month. 2. Prosecution case in short is as follows: "PW 7, Sri Krishna Basak, an Inspector of Police of Natun Bazar PS lodged a suo moto complaint against the accused appellant Smt. Laxmi Das stating inter alia, that on 24.08.2008 at 0035 hrs he received a telephonic information from the I.C., Chellagang, 9th Bn TSR Camp that one newly born male baby was murdered by his mother at Subhash Colony and the TSR personnel were guarding the P.O. and the dead body. Accordingly, PW 7 along with other police staff rushed to the P.O. and reached there at about 0330 hrs and found the dead body of the newly born baby kept in a gunny bag inside the dwelling hut of the accused and the accused was lying on the ground and she was crying due to pain. On being asked she divulged that her husband Pulin Das left her alone about 14 years back and for last one year she had been maintaining illicit relationship with one Manipuri truck driver of Bishalgarh, who used to visit her house when he used to come at Chellagang for collecting Bamboo and thus she became pregnant due to the illicit relationship with the Driver and on 23.08.2008 at around 19.30/2000 hrs she delivered a child in her house. The said driver did not visit her house for the last 7/8 months. To avoid social stigma the appellant did not take care of the newly born baby and after some time the baby died." 3. PW 7 also examined some local witnesses who heard the cry of the baby after birth. He also prepared the inquest report in presence of the witnesses. Marks of violence around the neck of the dead body and oozing of blood from the nose of the dead body were also noticed by the complainant, PW 7. Accordingly, an FIR was registered and finally after investigation the charge sheet had been filed against the accused appellant under Section 302/201 IPC. 4. Marks of violence around the neck of the dead body and oozing of blood from the nose of the dead body were also noticed by the complainant, PW 7. Accordingly, an FIR was registered and finally after investigation the charge sheet had been filed against the accused appellant under Section 302/201 IPC. 4. The trial court at the time of trial framed charges which is as follows: "That you on 23.08.2008 at about 1930 hours to 2000 hours at Subash Colony, Chellagang, under P.S.-Natunbazar, District-South Tripura committed murder by intentionally causing death of your newly born baby and you thereby committed an offence punishable under Section 302 of the Indian Penal Code and within my cognizance; And I hereby direct that you be tried by this Court on the said charge." 5. During trial the prosecution examined as many as 9 witnesses including the official witnesses. After closing of the prosecution evidence, the accused appellant was examined under Section 313 Cr.P.C. and the accused appellant declined to adduce any evidence in support of her defence. Finally, considering all the evidences the trial court convicted the accused appellant under Section 302 IPC and sentenced her, as stated above. 6. Mr. Dutta while urging for setting aside the order of conviction and sentence passed by the learned trial court would contend that the learned trial court failed to consider the evidence on record and not only that, the order of conviction is based on no evidence. He further submits that neither of the witnesses claimed to be a direct witness of the murder rather PW 9, Dr. Milan Bhakta Jamatia, the Medical Officer stated that he did not mention in his report whether the injuries found on the neck were ante mortem or post mortem and he has also not mentioned about the age of the injury. He further submits that there is no evidence as to who has put the newly born baby in the gunny bag and the gunny bag was also not seized by the prosecution. 7. Mr. Ghosh mainly relied upon the evidence of PW 7, Sri Krishna Basak, the complainant, Officer-in-Charge of the PS and PW 9, Dr. Milan Bhakta Jamatia, Medical Officer, who has done the post mortem over the body of the deceased newly born baby. 8. 7. Mr. Ghosh mainly relied upon the evidence of PW 7, Sri Krishna Basak, the complainant, Officer-in-Charge of the PS and PW 9, Dr. Milan Bhakta Jamatia, Medical Officer, who has done the post mortem over the body of the deceased newly born baby. 8. As the prosecution case is mainly based on the testimony of PW 7 and PW 9, it would be proper to discuss those testimonies. 9. PW 7, Sri Krishna Basak in his evidence stated that on 24-8-2008, while he was working at Nutanbazar Police Station as the Officer-in-Charge, on getting a telephonic information at about 0035 hours from the I/C, 9th Bn TSR Camp, Chelagang that a newly born male baby has been murdered by his mother at Subhash Colony, Chelagang, he entered the said information in the PS GD book vide G.D. entry No. 641 dated 24-8-08 and rushed to the place of occurrence. On arrival at the place of occurrence he found that some villagers and TSR personnel were present in the house of Laxmi Das and from there he recovered the dead body of a male child from a gunny bag. He also stated that he interrogated Laxmi Das on the spot in presence of 2 other women who were present in her house at that time and also prepared the inquest report in respect of the dead body of the newly born child. He also identified the inquest report and his signature on it (Exbt. P-1/1 and P-1/2, respectively). He further stated that he also examined the witnesses namely, Kiran Bala Das and Priyalal Roy and recorded their statements under Section 161 Cr.P.C. and sent the dead body of the child to Nutanbazar Rural Hospital for holding post mortem examination. He also identified the dead body challan and his signature on it (Exbt. P-2 and Exbt. P-2/1 respectively). On return to the P.S. from the place of occurrence he filed a suo-moto FIR against Laxmi Das and identified the FIR and his signature on it (Exbt. P-3, Exbt. P-3/1), respectively. He also stated that he arrested Laxmi Das and sent her to Nutanbazar Rural Hospital for treatment. In his cross-examination, he stated that he did not mention in the FIR about recording of GD entry and that at the instance of Laxmi Das he recovered the dead body of the male child 'concealed' in a gunny bag. P-3/1), respectively. He also stated that he arrested Laxmi Das and sent her to Nutanbazar Rural Hospital for treatment. In his cross-examination, he stated that he did not mention in the FIR about recording of GD entry and that at the instance of Laxmi Das he recovered the dead body of the male child 'concealed' in a gunny bag. He also stated that it is not a fact that he did not recover any dead body of a male child from the dwelling hut of the accused and that it is not a fact that he did not recover any dead body at the instance of Laxmi Das and that it is not a fact that at the instigation of the neighbours of Laxmi Das he had falsely implicated her in this case. He also stated that he did not record the statement of any TSR personnel who were present in the house of Laxmi Das on his arrival there. He denied the suggestion that he intentionally did not examine the TSR personnel. 10. PW 9, Dr. Milan Bhakta Jamatia in his evidence stated that on 25.8.2008, while he was working at Nutanbazar Rural Hospital as the Medical Officer, at around 1 p.m. he conducted post mortem examination over a newly born male baby in connection with NTB PS GDE No. 641 dated 24.8.08 and on examination he found reddish coloured throttling mark around the neck of said new born baby and also found right thumb impression on the right side of neck. After conducting post mortem examination he opined that the cause of death of new born baby was due to throttling. On the basis of this examination he prepared the report and also identified the report and his signature on it (Exbt. P-6 and P-6/1), respectively. In his cross-examination he stated that he did not mention in the report whether the injuries found on the neck were ante mortem or post mortem. He also stated that he did not mention about the age of the baby. In the opinion part he did not mention on what basis he came to the conclusion that the cause of death of new born baby was due to throttling. He further stated that he joined in the service at Nutanbazar Rural Hospital on 21st Dec. He also stated that he did not mention about the age of the baby. In the opinion part he did not mention on what basis he came to the conclusion that the cause of death of new born baby was due to throttling. He further stated that he joined in the service at Nutanbazar Rural Hospital on 21st Dec. 2007 but he denied the suggestion that due to inexperience he came to a wrong finding about the cause of death of the new born baby. 11. We have also gone through the judgment of the learned trial court. It appears from the judgment that the learned trial court mainly relied upon the evidence of PW 7 and PW 9 while convicting the accused appellant and according to him the prosecution has proved the circumstantial evidence from which the only conclusion that can be drawn is that it is the accused appellant who has committed the murder of the newly born baby. 12. By this time, it is settled law that in a case of circumstantial evidence the prosecution is bound to prove the complete chain of evidence and in the instant case it appears from the evidence that the accused appellant was suffering from pain when the dead body of newly born baby was found in the gunny bag. Not only that, admittedly, there is also no evidence as to who has put the baby in the gunny bag and what was the condition of the accused appellant, being the mother, at the time of recovery of the baby. More so, whether she was in a position to put the baby in the gunny bag is also doubtful. There is also no proof regarding the homicidal death of the newly born baby and unless such proof is there, it is very difficult to come to a conclusion that the newly born baby was murdered by the accused-appellant, after his birth. From the entire fact and circumstances, particularly, the evidence on record, we are of the opinion that the prosecution has failed to prove its case beyond reasonable doubt. 13. In view of the above, the judgment of the learned trial court is required to be interfered with. Accordingly, the same is set aside and the accused appellant is acquitted from the charges leveled against her on benefit of doubt. 13. In view of the above, the judgment of the learned trial court is required to be interfered with. Accordingly, the same is set aside and the accused appellant is acquitted from the charges leveled against her on benefit of doubt. It is ordered that the appellant be set at liberty forthwith if she is not wanted in connection with any other case. 14. With the above, the appeal is allowed. Send down the LCR.