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2019 DIGILAW 441 (GAU)

Malati Mundari v. State of Assam

2019-04-08

ACHINTYA MALLA BUJOR BARUA, MIR ALFAZ ALI

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JUDGMENT : Achintya Malla Bujor Barua, J. 1. Heard Mr. R.M. Choudhury, learned Amicus Curiae for the appellant. Also heard Ms. S Jehan, learned Additional Public Prosecutor, Assam. 2. An ejahar was lodged on 02.04.2014 at about 8.30 A.M. by Quity Mundari S/o Late Pichu Mundari before the Officer-in-Charge, Moran Police Station alleging that as his wife Malati Mundari was suffering from some illness her father took her away to his house at Tetunbari Tea Estate along with their six months old daughter, namely, Majoni Munda. It is stated in the ejahar that his wife had confessed that on 01.02.2014 she had killed their six months old daughter by throwing her in a pond near her fathers house. The time of occurrence is stated to be 4.00 PM of 01.12.2014. 3. The informant, Quity Mundari while deposing as PW-1 had stated that on the date of the occurrence at about 7.00 P.M. the VDP member Jiten Munda and the brother of the accused Malati Mundari, namely Ramsai Munda had informed him that his daughter Majoni Munda is dead. Upon arriving at the house of the father of his wife, he came to know that his wife Malati Munda had killed their baby by throwing her into the water of a pond. The witness even sated that his wife told him that she had killed their daughter by throwing her into the water of the pond. He further deposed that she had also stated the police in his presence that she had thrown the baby into the water of a pond. 4. Ramsai Mundari was examined as CW-1, who had stated in his deposition that on the date of the occurrence at about 4.00 P.M. when he came back from his work, he heard halla and came to know that the baby of the accused person was missing and all the persons present were searching for her. He further deposed that the accused herself told them that she had thrown the baby into the water of the pond situated nearby their house. He also deposed that immediately thereafter, the village people arrived on the spot and found the dead body of the baby floating on the water of the pond. He further deposed that the accused herself told them that she had thrown the baby into the water of the pond situated nearby their house. He also deposed that immediately thereafter, the village people arrived on the spot and found the dead body of the baby floating on the water of the pond. He deposed that the village people who had gathered had informed the matter to the husband of the accused, the village people picked up the body of the baby and that the village people informed the matter to the police over phone and on the next date the police arrived on the spot. 5. Jiten Munda, who had deposed as PW-6 had stated in his deposition that about 9.00 P.M. on the date of the occurrence, the brother of the accused, Ramsai Munda came to his house and informed that his sister/the accused had thrown her baby, Majoni into the water of a pond. Upon being so informed, he went to the place of occurrence and found the dead body of the baby floating in the water. It is deposed that the said witness had informed the matter to the police and accordingly the police arrived at the place of occurrence. PW-6 also states that when the accused was asked about the occurrence, she had admitted before him as well as the village people that she herself had killed her daughter by throwing her into the water of a pond. 6. PW-2, Ratan Munda in his deposition states that when he came back home from work at 10.00 AM he came to know that the accused had killed her six months old baby and accordingly, police went to the house of the accused and interrogated her in his presence. He further deposed that the accused had admitted before the police as well as before him that she herself had killed the baby and he saw the dead body of the baby near the pond. 7. PW-3, Dipen Borah states that he came to know from the village people that the dead body of the baby is floating into the water of a pond and that the accused had stated before the police as well as before them that she had killed the baby by throwing in the pond being unable to maintain her as she was not being maintained by her husband. 8. 8. Based on the aforesaid extra judicial confession, purportedly made by the accused person before the CW-1, PW-6, PW-1, PW-2 and PW-3, the accused appellant had been convicted under Section 302 IPC and sentenced her to undergo rigorous imprisonment for life with a fine of Rs. 1000/-. 9. We have taken note that even as regards the extra judicial confession purportedly made by the accused appellant, there were contradictions within the prosecution witnesses as well as the Court witness as to when such confession was made. CW-1 states that the accused had told before them that she had thrown the body into the water and immediately thereafter, the village people arrived and found the body floating on the water and further the village people who had gathered on the spot had informed the matter to the husband of the accused and the village people themselves took up the body of the baby from the water and further that the village people had informed the matter to the police over telephone. The said event as stated by CW-1 had taken place at about 4 PM on the date of occurrence. PW-6, on the other hand, states that at about 9.00 PM when CW-1 Ramsai Mundari came to his house, knew that the accused had thrown her daughter into the water of a pond and, accordingly, he went to the place of occurrence and found the body of the baby floating on the water. It is to be understood that till 9.00 PM when the PW-6 had gone to the place of occurrence, the dead body was still floating in the water which again appears to be in conflict with what CW-1 had stated that at 4.00 PM when he went searching for the baby, the accused herself told that she had thrown the baby into the water and, immediately, thereafter the village people arrived, found the dead body of the baby floating on the water and the village people themselves picked up the baby from the water. The extra judicial confession stated to have been made by CW-1 Ramsai Mundari in his evidence when looked from the point of view that the extra judicial confession stated to have been made by the accused before the PW-6, Jiten Munda appears to be a different extra judicial confession. The extra judicial confession stated to have been made by CW-1 Ramsai Mundari in his evidence when looked from the point of view that the extra judicial confession stated to have been made by the accused before the PW-6, Jiten Munda appears to be a different extra judicial confession. Again, if we look into the evidence of PW-1, Quity Munda, who admittedly arrived on the next date i.e. 02.04.2014, he came to know upon his arrival that his wife, Malati Mundari had killed their baby by throwing her into the water and further that his wife had told him that she had killed their daughter by throwing her into the water. He further states that she had also stated before the police in his presence that she had thrown the baby into the water of a pond. This leads us to the third extra judicial confession by the accused before the PW-1, on the next date of occurrence and further she repeated the extra judicial confession before the police in his presence once again. 10. PW-2, Ratan Mundari says that when he came back from work at about 10.00 A.M. he came to know that the accused had killed her six months daughter and that the police had interrogated her in his presence, she admitted before the police that she herself had killed the baby. He further deposed that he saw the body of the baby in the nearby pond. 11. The Investigating Officer, being the PW-5 in his deposition had stated that when he reached the place of occurrence, he saw one dead body of a new born baby near the pond. He also states that he examined the accused, Malati Mundari who was the mother of the deceased. He further states that he had sent the dead body for post mortem and the accused person was taken to the police station for interrogation and necessary action. In cross, the PW-5 states that he presumes that the accused herself committed the offence and to a suggestion he states that it is not a fact that the accused did not confess before him that she committed the offence. But it is taken note of that in his examination-in-chief, the Investigating Officer does not stated anything that the accused had confessed before him that she had thrown her baby in the pond. 12. But it is taken note of that in his examination-in-chief, the Investigating Officer does not stated anything that the accused had confessed before him that she had thrown her baby in the pond. 12. In the aforesaid circumstances, because of the conflicting statements being made by the prosecution witnesses in their deposition as regards the extra judicial statement made by the accused before them, especially with regard to the timing of such statement being made and also the Investigating Officer having not stated in his deposition that any such extra judicial confession was made by the accused before the police, which again is in conflict with the deposition of PW-1 and PW- 2, who stated in their deposition that the accused had also confessed before the police, we are of the view that it would be unsafe to uphold the conviction against the accused appellant based on such extra judicial confession alone. No further evidence had been led by the prosecution, which may give an indication that it is the accused appellant who had committed the offence of throwing her baby into the pond. 13. In view of the aforesaid conclusion, we are of the view that the prosecution had failed to prove the case beyond reasonable doubt that it is the accused appellant, who had committed an offence of Section 302 IPC by throwing her six months old baby in the pond nearby causing death of her. 14. Accordingly, the conviction and sentence of the accused appellant under Section 302 IPC as per the Judgment and Order of the learned Sessions Judge, Dibrugarh in Sessions Case No. 23/2015 dated 03.03.2016 is set aside. 15. The accused appellant is set at liberty forthwith, provided she is not required in connection with any other case. 16. Appeal stands allowed to the extent indicated hereinabove. 17. Before parting with the record, we appreciate the valuable service rendered by Mr. R.M. Choudhury, learned Amicus Curiae. Accordingly, it is directed that an amount of Rs. 7,500/- as legal fees be paid to him by the High Court Legal Service Committee upon production of a copy of this judgment and order. 18. Send back the LCR.