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2020 DIGILAW 364 (CAL)

Archana Mondal v. State Of West Bengal

2020-03-05

JOYMALYA BAGCHI, SUVRA GHOSH

body2020
JUDGMENT Joymalya Bagchi, J. - Unfortunate homicidal death of a six months' old child is the subject matter of the instant case. Mithun was born to Jiten (P.W.1) and his wife Kabita (P.W.12). There was a dispute between Kabita and the appellant, who was her sister-in-law, in connection with the use of a joint privy. On 10.3.2014 Kabita after massaging his son with oil had kept him in a cradle in the veranda in the house. Thereafter, Kabita went out to wash clothes. It is alleged appellant was alone in the house with the child. Upon returning home, Kabita could not find the child and started crying. Local people came to the spot and started searching. There was a well in the house which was covered with a tin sheet. On removing the tin sheet, they found the body of the child floating in water. Appellant was in the house tried to flee away. Neighbours detained her. Thereafter, she confessed her guilt. On the written complaint of P.W. 1 Jiten, FIR was registered under section 302 IPC against the appellant. In conclusion of investigation, charge-sheet was filed. Charge was framed under section 302 IPC. Appellant pleaded not guilty and came to be tried. It was her specific defence that P.W.1 suspected the paternity of the child and had murdered his own child out of grudge. Subsequently, blame was thrown on the appellant. To prove its case, prosecution examined 15 witnesses and exhibited a number of documents. 2. In conclusion of trial, the trial Judge by the impugned judgment and order dated 01.07.2016 and 04.07.2016 convicted the appellant under section 302 of the Indian Penal Code and sentenced her to suffer rigorous imprisonment for life and pay a fine of Rs.10,000/- (rupees ten thousand only) in default to suffer rigorous imprisonment for one year more. 3. Mr. Bhattacharya appearing for the appellant argued there is no direct evidence connecting the appellant with the crime. As per P.W.s 1 and 12 incident occurred at 10.30 in the morning. However, post-mortem doctor (P.W.11) who conducted post-mortem over the body of the child at 4 p.m. deposed that the death of the victim occurred 8 to 36 hours ago. He also stated that if a body falls in water it would float in water after 8 to 12 hours in summer and 12 to 24 hours in winter. However, post-mortem doctor (P.W.11) who conducted post-mortem over the body of the child at 4 p.m. deposed that the death of the victim occurred 8 to 36 hours ago. He also stated that if a body falls in water it would float in water after 8 to 12 hours in summer and 12 to 24 hours in winter. Hence, the ocular version of P.W. 1 and 12 with regard to time of death does not find support from medical evidence. Plea that appellant was alone in the house has not been proved. The house was occupied by four brothers and their families. Apart from P.W.s 1 and 12, none of the brothers or their wives have been examined in court to establish their whereabouts on the date of occurrence. Extra-judicial confession is inadmissible as the same was procured under threat and coercion and is not corroborated by other evidence on record. Accordingly, he prayed for acquittal. 4. On the other hand, Mr. Maity, learned Additional Public Prosecutor deposed appellant was alone in the house at 10.30 a.m. in the morning with the child when his mother (P.W. 12) went out to wash cloth. Upon return, P.W. 12 could not find the child. Soon thereafter his body was found floating in the well. Appellant tried to escape but was caught. She confessed her guilt before local villagers. There was enmity between the appellant and P.W.12 over locking of a joint privy. This circumstance clearly establish the guilt of the appellant. Hence, the appeal is liable to be dismissed. 5. The prosecution case as emanating from the evidence of P.W. 1 and 12, parents of the minor child, as well as the charge framed is to the effect that the child was murdered by the appellant on 10th March, 2014 at 10.30 a.m. P.W.1 and 12 deposed on the fateful day child was massaged with oil by his mother (P.W.12) and kept in a cradle at the veranda of the house. Thereafter, P.W.12 went out for washing clothes. Upon return, she did not find the child and started crying. Local people, namely, P.W. 2 (Nagardwip Chowdhury), P.W. 3 (Sattam Mondal), P.W. 4 (Fekan Mondal) and P.W. 6 (Goutam Mondal) came to the spot and found the body of the child floating in the water. They recovered the body. Appellant tried to escape but was detained. She made extra-judicial confession to them. Local people, namely, P.W. 2 (Nagardwip Chowdhury), P.W. 3 (Sattam Mondal), P.W. 4 (Fekan Mondal) and P.W. 6 (Goutam Mondal) came to the spot and found the body of the child floating in the water. They recovered the body. Appellant tried to escape but was detained. She made extra-judicial confession to them. Thereafter, P.W. 1 lodged FIR (Ext.1) at 11.35 a.m. If the aforesaid pieces of evidence to be believed, it appears that the child had been murdered at 10.30 a.m. and thrown into the pond. Soon thereafter his mother returned and raised hue and cry. Local people found the body of the child floating in the pond. FIR came to be registered at 11.35 a.m. Hence, it can be safely concluded that the body of the victim was found floating within one hour of the alleged incident. On the other hand, post-mortem doctor (P.W.11) who conducted post-mortem on the body of the deceased child at 4 p.m. deposed the probable time of death is between 8 to 36 hours prior to post-mortem examination. He also deposed if a person fell into the well his body would float after 8 to 12 hours in summer season and in winter 12 to 24 hours later. As per medical opinion, death of the child had occurred prior to 8 a.m. in the morning and in all probability not later than the wee hours of 10.3.2014 since the body of the child was seen floating in the water around 11.30 a.m. Medical evidence on record, therefore, does not support the prosecution case of homicidal death of the child at 10.30 a.m. as claimed by his parents. 6. It is pertinent to note apart from the evidence of the parents namely, PW1 & 12, nobody had seen the child alive at 10:30 A.M. Suggestions had been made that it is the father of the child namely, PW1 who suspected his paternity and had committed the crime. Such suggestion, no doubt, has been denied by the said witness. 6. It is pertinent to note apart from the evidence of the parents namely, PW1 & 12, nobody had seen the child alive at 10:30 A.M. Suggestions had been made that it is the father of the child namely, PW1 who suspected his paternity and had committed the crime. Such suggestion, no doubt, has been denied by the said witness. However, in view of the dichotomy vis- -vis the time of death as appearing from the versions of PW1 & 12 on the one hand and the medical evidence on the other hand it is necessary to seek corroboration of the depositions of PW1 & 12 with regard to the fact that the child who murdered at 10:30 A.M. and thrown into the pond, as claimed by them. No such evidence is forthcoming to consolidate the prosecution case in the face of divergent medical opinion with regard to the time of death. 7. Another aspect of the prosecution case is equally disturbing. PW1 & 12 claimed the appellant was alone in the house with the child after his mother, i.e. PW12 went out to wash clothes. Evidence has come on record that the house was occupied by PW1 and his brothers. None of the brothers and their family members who ordinarily reside in the house had been examined in court to probabilise the fact that they were not in the house on the fateful day. Even if one accepts the prosecution theory that the men folk had gone out to work, it is inexplicable how their wives and children were absent from the house on that day. Such a circumstance is wholly unnatural and bristles against the prosecution theory of the appellant being the sole adult member in the house along with the minor child at the time of occurrence. 8. Finally motive of crime is equally weak. Prosecution witnesses claimed there was enmity between the appellant and her sister-in-law (PW12) over locking of a joint privy. Such dispute amongst co-sharers of a common household is not unnatural. Nothing has come on record that on the fateful day any quarrel ensued between the appellant and P.W.12 over such dispute. Under such circumstances, I find it difficult to persuade myself that the aforesaid motive is sufficient to prompt the appellant to take the extreme step of murdering the minor child of P.W. 12. Nothing has come on record that on the fateful day any quarrel ensued between the appellant and P.W.12 over such dispute. Under such circumstances, I find it difficult to persuade myself that the aforesaid motive is sufficient to prompt the appellant to take the extreme step of murdering the minor child of P.W. 12. P.W.1 suspected his paternity of the child and murdered him. If the opinion of the post-mortem doctor (P.W.11) that the body of a person who fell into a well would be found floating at least eight hours of the incident is accepted, then the death of the child in all probability occurred not later than the wee hours of 10th March, 2014 diverting the needle of suspicion from the appellant to her parents. 9. In view of the aforesaid facts, I am of the opinion that the prosecution has been unable to prove the time of death of the minor child beyond doubt. Failure to do so in a case based on circumstantial evidence is fatal. 10. Learned Additional Public Prosecutor strenuously relied on the extrajudicial confession of the appellant to bring home the guilt. PWs 2 to 4 and 6 claimed the appellant made an extra-judicial confession to them immediately after the body of the child was recovered. However, PW8, uncle of PW1, who also came to the spot has not corroborated the version of the other witnesses. 11. Hence, I am of the opinion it is doubtful whether the appellant at all made the extra-judicial confession or not. Furthermore, in view of the fact that the appellant was detained by the witnesses, I have doubt whether such confession was either voluntary or truthful. That apart, contents of extra-judicial confession do not find corroboration from other evidence on record. As discussed earlier, medical opinion with regard to time of death throws serious doubt with regard to the manner and circumstance in which the incident occurred. 12. In view of the aforesaid facts, I am unwilling to rely on the so-called extrajudicial confession to come to a conclusion of guilt against the appellant. 13. In the light of the aforesaid discussion, I acquit the appellant of the charge levelled against her. 14. The appeal is allowed. 15. 12. In view of the aforesaid facts, I am unwilling to rely on the so-called extrajudicial confession to come to a conclusion of guilt against the appellant. 13. In the light of the aforesaid discussion, I acquit the appellant of the charge levelled against her. 14. The appeal is allowed. 15. Appellant herein shall be forthwith released from custody, if not wanted in any other case, upon execution of a bond to the satisfaction of the trial court which shall remain in force for a period of six months in terms of Section 437A of the Code of Criminal Procedure. 16. Lower court records along with a copy of this judgment be sent down at once to the learned trial court for necessary action. 17. Photostat certified copy of this order, if applied for, be given to the parties on priority basis on compliance of all formalities. 18. I agree.