REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1370 OF 2007

ROOPSENA KHATUN ...APPELLANT

VERSUS

STATE OF WEST BENGAL ...RESPONDENT

J U D G M E N T  

SIRPURKAR, J.  

1. This appeal is filed by an unfortunate orphan girl  

against the concurrent judgments of the Sessions 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.      

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  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 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.

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 deceased from the pond;

ii)   The extra-judicial confession allegedly made to  

the witnesses including the father PW1 and some other  

witnesses;

iii) The  recovery   of  silver  chain  from  the  

accused.

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  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 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 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 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 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.

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, 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  

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.

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 10  

a.m. on the earlier day whereas the body was found on the  

next day at 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.   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 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 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 witnesses have  described the girl as frock wearing  

girl.  If she was a frock wearing Mohamedan girl, then,  

obviously, she could 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 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 in any other case.

......................J.   [ V.S. SIRPURKAR ]

......................J. [ T.S. THAKUR ]

NEW DELHI APRIL 28, 2011.