Duti Dei vs The State

P.K. Mohanti, J.—The Appellant is a young woman of 20 who has been convicted u/s 302, Indian Penal Code and sentenced to undergo imprisonment for life for having caused the death of her three months'' old illegitimate child by throwing her into a tank.

Prosecution case was that the Appellant being unable to maintain the child due to poverty killed it by throwing it into the tank on 2-6-1974 at about 2.30 p.m. She confessed her guilt before the witnesses and led them to the tank where the dead child was found floating. She was taken to the village along with the dead child and was produced before the Gramarakhi. Then she was taken to the Bonth Police Station and on the information lodged by P.W. 1 F.I.R. was recorded. The doctor P.W. 6 performed post-mortem examination over the dead body and opined that the death was due to drowning. In due course, the Appellant was charge-sheeted by the police.

The Appellant denied the charge and pleaded innocence. She disowned the dead child and denied having made any confession before the witnesses.

There is no direct evidence about the factum of murder. None of the witnesses stated to have seen the Appellant throwing the child into the tank. The trial Court has based the conviction of the Appellant primarily upon the evidence of extra-judicial confession alleged to have been made by the Appellant before P.Ws. 1 to 5 on 2-6-1974.

The value of the evidence regarding extra-judicial confession like any other evidence depends upon the veracity of the witnesses to whom It is made. There are in the present case certain unsatisfactory features which create considerable doubt regarding veracity of the witnesses and in our opinion it would be unsafe to maintain the conviction on the basis of their evidence.

P.W. 1 Baidhar Jena stated that on the date of occurrence at about 2 p.m. while he was sitting in a tea-stall he saw the Appellant going on the road with a child in her arms and a bundles of cloth. He again met her at about 4 p.m. near a tank of village Purusottampur but did not find the child with her. When he enquired from the Appellant as to what happened to the child, she replied that she had left it with her husband. Then the witness proceeded to say that while he was talking to the Appellant, P.Ws. 2 and 3 arrived there and asked her about the child and she told them that she had thrown it into the fishery tank of Bonth. It is not clear as to why the Appellant should be immediately seized by a mood to make a confession before P.Ws. 2 and 3 that she threw the child into the tank. It is significant that the Appellant was a stranger to P.Ws. 2 and 3. It does not, therefore, seem likely that she would repose confidence in them and disclose the occurrence when she had given a different version before P.W. 1. The evidence in this respect lacks plausibility and does not inspire confidence. In his cross-examination P.W. 1 stated that P.Ws. 2, 3, 4 and 5 were also present when the Appellant was asked for the first time regarding the whereabouts of the child and that to the query of P.W. 3 she replied that being unable to maintain the child she threw it into the tank. P.W. 5 is a Gramarakhi and a confession made in his presence is inadmissible in evidence. Madan '' Undu Barik Vs. The State, .

P.W. 2 Uttam Charan Biswal did not support the evidence of P.W. 1 that the Appellant made the confession being asked by P.W. 3 regarding the whereabouts of the child. He claimed to have himself asked the Appellant regarding the whereabouts of the child and got the reply that she had thrown the child into the tank. According to him, the Appellant was taken to the village club and was detained there and the Ward Member and the Gramarakhi (P.Ws. 4 and 5) were sent for. Being asked by P.Ws. 4 and 5, the Appellant narrated the entire incident before them as she had narrated before him. But in cross-examination he stated that nobody asked the Appellant anything at the club. Subsequently he changed the version and said that being asked by the Ward Member and the Gramarakhi (P.Ws. 4 and 5) the Appellant confessed her guilt. In view of the conflicting versions given by the witness no reliance can be placed on his evidence.

The evidence of P.W. 3 Chaitanya Sethi was that while he was present in the club he saw p: w. 1 talking to the Appellant at a distance of about 100 feet from him. He went there and heard the Appellant telling P.W. 1 that she had thrown the child into the tank. This evidence is in direct conflict with that of P.W. 1. As already mentioned the evidence of P.W. 1 was that the Appellant stated before him that she had left the child with her husband. Moreover P.W. 3 did not support the statement of P.W. 1 that being asked by P.Ws. 2 and 3 the Appellant first made the confession before them. According to him, he was not present at the place where P.W. 2 was asking the Appellant about the incident. He stated that he was in the club when P.W. 2 was asking the Appellant about the incident.

P.Ws. 4 and 5 stated that they along with P.Ws. 1 to 3 took the Appellant to the Police Station and that on their way to the Police Station the Appellant confessed her guilt. In view of the Bench decision referred to above the confession made in presence of P.W. 5 is in admissible in evidence.

P.Ws. 1 to 3 have made inconsistent statements about the extra-judicial confession and it is difficult to come to any definite finding as to what the Appellant actually stated and before whom such statement was made. We find the evidence of the witnesses to be improbable and lacking 10 credence.

The witnesses want us to believe that the dead body was found floating in the water within 2 to 3 hours after the death. According to Modi''s Jurisprudence, a submerged body comes to the surface within twenty-four hours in summer and within two to three days or more in winter.

P.Ws. 1 to 3 could not assign any reason as to why the Appellant was taken to the village after she made confession and was not produced at the Police station which IS close to the tank wherefrom the dead child was recovered.

Another unsatisfactory feature of the case is that nobody has stated to have seen the child alive on the date of occurrence before it was thrown into the tank.

A close, scrutiny of the evidence of the witnesses would clearly show that it is replete with contradictions and meaningful embellishments. We would therefore hold in disagreement with the trial Court, that the prosecution has failed to establish its case beyond all reasonable doubts.

In the result, we allow the appeal, set aside the conviction and the sentence and direct that the Appellant be set at liberty forthwith.

R.N. Misra, J.

I agree.

Appeal allowed.