ROOPSENA KHATUNversusSTATE OF WEST BENGAL

                        [2011] 5 S.C.R. 982


A                      ROOPSENA KHATUN
                                  v. .
                    STATE OF WEST BENGAL
                (Criminal Appeal No. 1370 of 2007)
                          APRIL 28, 2011.
B
           [V.S. SIRPURKAR AND T.S. THAKUR, JJ.]

        Penal Code, 1860: s.302- Murder- Conviction ulss.302
   and 379 - Allegation that accused committed murder of child
C by drowning her in a pond and thereafter removed silver chain
   from her person - Conviction based on circumstantial
   evidence - Circumstances were disclosure statement, extra-
  judicial confession, recovery of silver chain from the accused
  and that accused was last seen with the victim - On appeal,
D held: Prosecution failed to prove the case of murder and theft
   of silver chain against the accused - The body of the victim
   was found floating in the pond a day after she went missing -
   In such case, it could be seen by anybody, therefore, pointing
   out the corupus delicti by the accused was not of much
E significance - The exact words of the accused were not uttered
   by any of the witnesses - Therefore, the so called extra-judicial
   confession was of no consequence - There was no detail in
   seizure memo regarding the place from where silver chain
   was seized nor the chain was identified by the father of the
F victim - This would put the seizure into extreme suspicion -
   Moreover, there was no proximity between the time when the
   victim and the accused were last seen together and the time
   of the death of the victim - Considering the short distance
   between the house of the victim and the pond, possibility of
G accidental drowning not ruled out - Accused was stated to be
   a frock wearing mohamedan girl on the relevant date and it
   was not shown as to how such a small girl could have drowned
   t(1e victim - Sessions judge should have used its discretion
   and sent the accused for medical examination to ascertain

H                                982
ROOPSENA KHATUN v. STATE OF WEST BENGAL 983


her exact age, which he failed to do - High Court did not advert   A
to this aspect - Conviction by courts below set aside.

     The prosecution case was that the accused
committed murder of a child by drowning her in a pond
and thereafter removed the silver chain from her person.           8
On the fateful day, the victim left her house for her
grandmother house and thereafter she was missing. PW-
3 told the father of the victim that he had seen the victim
following the accused. The accused was apprehended by
the villagers the next day and she confessed that she              C
committed the murder of the victim by drowning her in
the pond and that she had also removed the silver chain
from her person. The accused pointed out the body of
the deceased from the pond. The prosecution relied upon
the disclosure statement, the extra-judicial confession
allegedly made to the witnesses including the father PW1           D
and some other witnesses and the recovery of silver
chain from the accused. The trial court convicted the
accused under Section 302 IPC as also under Section
379 IPC for committing theft of a silver chain from the
body of the victim. The High Court affirmed the order of           E
conviction. Aggrieved, the accused filed the instant
appeal.

   . Allowing the appeal, the Court

    Held: 1. Insofar as the first circumstance relating to F
the disclosure of the accused having committed the
murder and pointing out the corpus delicti is concerned,
both the courts below held that circumstance as a proof
against the accused on the basis of the evidence of the
witnesses. It is a common knowledge that the body could G
not have remained under the water for 24 hours. At least
from the post-mortem report, it is clear that the body was
decomposed. Under such circumstances, the body .
could have ever remained underneath the water level for
                                                           H
    984      SUPREME COURT REPORTS            [2011] 5 S.C.R.


A 24 hours. It was certainly expected to be floating. In that
  case, it could be seen by anybody. Therefore, such
  circumstance loses its significance. [Para 4) [987-B-D]

          2. The second circumstance was about the extra-
s judicial confession. The evidence of the extra-judicial
  confession is of extremely weak kind. In this case, the
  exact words of the accused were not uttered by any of
  the Witnesses. Again, if there was any suspicion against
  the accused, the whole village would have pounced upon
  her and cursed her of having committed the murder.
C Under such circumstances, the so called extra-judicial
  confession made to the witnesses even if they were more
  than three, would be of no consequence and would not
  be considered as an incriminating evidence against the
  accused. [Para 5) [987-E-G]
0
       3. The circumstance of the recovery of the silver
  chain from the accused was extremely strange. The
  seizure memo did not suggest the place from where the
  silver chain from the accused was seized. Under such
E circumstances, it is very difficult to hold that the accused
  was carrying the silver chain on her person. The absence
  of any detail in the seizure memo regarding the place from
  where the silver chain was seized or also the oral
  evidence puts the seizure in extreme suspicion. This
F circumstance cannot be accepted particularly because
  the said silver chain was also not identified by the PW 1
  - father of the deceased. There was no identification
  parade held regarding the said silver chain which was an
  extremely common ornament. Therefore, even that
G circumstance loses its significance. [Para 6] [987-H; 988-
  A-B]
        4. The last circumstance "last seen", if at all can be
    used against the accused as a circumstance should
    have been connected with the time of death. Here is the
H
ROOPSENA KHATUN v. STATE OF WEST BENGAL 985


case when the deceased was seen following the accused             A
at about 10 a.m. on the earlier day whereas the body was
found on the next day at about 2.30 p.m. The prosecution
did not fix the· time of the death also. Therefore, there is
no proximity between the time when the deceased and
the accused were last seen together and the time of the           B
death' of the deceased. At least, the prosecution was not
able fo •establish the same. Therefore, even if that
circumstance is viewed as an incriminating evidence, it
would be of no significance. [Para 7] [988-C-E]

    5. ·The depth of the pond is not shown. In what               C
manner could a small girl like accused have drowned the
deceased is also not shown. Considering the short
distance between the. house of the deceased and the
pond, thepossibility of the death being accidental cannot
be ruled out. [Para 8] [988-F]                                    D
    6. The accused in her appeal had mentioned that she
was 15 years of age on the date of incident. At least, three
witnesses described the girl as frock wearing girl. If she
was a frock ·wearing Mohamedan girl, then, obviously,             E
she could not have been a major on the relevant date. The
Sessions Judge should have used its discretion which
he was supposed to exercise in law and should have
sent the accused for medical examination to ascertain her
exact age. The Sessions Judge failed in his duty. The             F
High Court did not advert to this aspect. The judgments
of courts below is set.aside. [Para 10 and 11] [989-A-C]

    CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1370 of 2007.
                                                                  G
    From the Judgment & Order dated 07.09.2004 of the High
Court of Calcutta in Criminal Appeal No. 388 of 2000.

    Vibhu Tiwari (for Ravi Prakash Mehrotra) for the Appellant.
                                                                  H
    986      SUPREME COURT REPORTS               [2011] 5 S.C.R.


A         Tara Chandra Sharma for the Respondent.

          The Judgment of the Court was delivered by

          SIRPURKAR, J. 1. This appeal is filed by an unfortunate
  orphan girl against the concurrent judgments of the Sessions
B Court as also the High Court whereby she stands convicted for
  the offence punishable under Section 302 IPC as also under
  Section 379 IPC for committing theft of a silver chain from the
  body of deceased.

c      2. The prosecution case is that accused Roopsena Khatun
  committed murder of a child called Baby Khatun by drowning
  her in a pond and also removed the silver chain from her
  person. It is alleged that on 29.7.1999, Baby Khatun left her
  house for her grand-mother house and thereafter, there was no
0 trace of the girl. PW3 Abdul Quddus told the father of the
  deceased that he had seen Baby Khatun following the accused
  on the previous day at 10 a.m. A search was started for her
  and ultimately, the accused was apprehended by the villagers
  on the next day at about 12 noon in the jute field. On being
E asked, the accused is supposed to have confessed that she
  committed the murder of Baby Khatun by drowning her in the
  pond and had also removed the silver chain from her person.
  The matter was reported to the police. At about 4.45/5 p.m.,
  the police arrived at the scene of occurrence and is stated to
  have seized the silver chain from the accused.
F
       3. The prosecution relied on the following circumstances.

          i) The disclosure made by the accused that she had
          committed the murder and pointed out the body of the
G         deceased from the pond;

          ii) The extra-judicial confession allegedly made to the
          witnesses including the father PW1 and some other
          witnesses;

H
ROOPSENA KHATUN v. STATE OF WEST BENGAL 987
           [V.S. SIRPURKAR, J.]
     iii) The recovery of silver chain from the accused.               A

     iv) Baby Khatun was seen following the accused at 10 A.M.
     on the earlier day.

     4. Insofar as the first circumstance relating to the disclosure
of the accused having committed the murder and pointing out            8
the corpus delicti is concerned, both the courts below have held
that circumstance as a proof against the accused on the basis
of the evidence of the witnesses. It is a common knowledge
that the body could not have remained under the water for 24
hours. The body was bound to be floating. At least from the            C
post-mortem report, it is clear that the body was decomposed.
Under such circumstances, we do not think that the body could
have ever remained underneath the water level for 24 hours. It
was certainly expected to be floating. In that case, it could be
seen by anybody. Therefore, such Circumstance loses its                D
significance.

      5. The second circumstance is about the extra-judicial
confession. We can imagine the plight of a poor orphan girl who
is described as a frock wearing girl by some of the witnesses          E
and was at the mercy of her grand-mother with whom she was
living. The evidence of the extra-judicial confession is of
extremely week kind. In this case, the exact words of the
accused have not been uttered by any of the witnesses. Again,
if there was any suspicion against the accused, the whole
village would have pounced upon her and cursed her of having
                                                                       F
committed the murder. Under such circumstances, the so called
extra-judicial confession made to the witnesses even if they
were more than three, would be of no consequence and we
would not consider that as an incriminating evidence against
the accused.                                                           G

     6. The circumstance of the recovery of the silver chain from
the accused is extremely strange. We have seen the seizure
memo which does not suggest the place from where the silver
chain from the accused was seized. Under such circumstances,           H
    988     SUPREME COURT REPORTS                  [2011] 5 S.C.R.


A it is very difficult for us to hold that the accused was carrying
  the silver chain on her person. The absence of any detail in the
  seizure memo regarding the place from where the silver chain
  was seized or also the oral evidence puts the seizure in extreme
  suspicion. At any rate, we are not prepared to accept this
B circumstance particularly because the said silver chain has also
  not been identified by the PW 1 ._ father of the deceased . There
  was no identification parade held regarding the aforesaid silver
  chain which was an extremely common ornament. Therefore,
  even that circumstance loses its significance.
c      7. The last circumstance "last seen" if at all can be used
  against the accused as a circumstance should have been
  connected with the time of death. Here is the case when the
  deceased was seen following the accused at about 1O a.m. on
  the earlier day whereas the body was found on the next day at
D about 2.30 p.m .. The prosecution has not fixed the time of the
  death also. Therefore, there is no proximity between the time
  when the deceased and the accused were last seen together
  and the time of the death of the deceased. At least, the
  prosecution has not been able to establish the same.
E Therefore, even if that circumstance is viewed as an
  incriminating evidence, it would be of no significance.

         8. The depth of the pond is not shown. In what manner
    could a small girl like accused have drowned the deceased is
F   also not shown. Considering the short distance between the
    house of the deceased and the pond, the possibility of the death
    being accidental cannot be ruled out.

        9. The least we feel is that the prosecution has not been
  able to prove the case of murder against the accused or even
G for the theft of the silver chain from the person of the deceased.

       10. Before we part with this case, we must observe that
  the accused in her appeal before us has mentioned that she
  was 15 years of age on the date of incident. At least, three
H witnesses have described the girl as frock wearing girl. If she
  ROOPSENA KHATUN v. STATE OF WEST BENGAL 989
             [V.S. SIRPURKAR, J.]         .

  was a frock wearing Mohamedan girl, then, obviously, she could      A
  not have been a major on the relevant date. In our opinion, the
  Sessions Judge should have used its discretion which he was
  supposed to exercise in law and should have sent the accused
  for medical examination to ascertain her exact age. The
  Sessions Judge has failed in his duty. The High Court has not       B
• adverted to this aspect.         ·         ·

      11. Under the circumstances, we do not affirm the
 judgments of the courts below. We, accordingly, set-aside the
 judgments of the courts below and allow this appeal. The
 accused be released from the jail forthwith if she is not required   C
 in any other case.
 D.G.·                                           Appeal allowed.