NOJALI Vs. SARKAR

JUDGEMENT

(1.) This is an appeal by the accused Mt. Nojali, wife of Durga Jat against the judgment of the learned Sessions Judge convicting and sentencing her under Section 302, M. P. C. to rigorous imprisonment for life for causing the death of Idan, sou of Karnia, Jat, a lad of 8 years of age, on the morning of 6th May 1939.

(2.) The houses of Karnia and Mt. Nojali are situate doge to each other and it appears that the deceased Idan used to go to the house of Mt. Nojali to play with her son Kana who was of the same age. The prosecution story is that on the morning of 6th May 1948 at about 8 O clock, Idan went to Nojali'a house but never came back. In the evening when Karnia, father of the deceased, came home, the latter a mother informed him that Idan was not present. Karnia went to the Kot and informed the Hawaldar P. W. 2 Sbankerlal of this fact. Shankerlal accompanied by P. W. 4 Kalyansingh, P. W. 6 Rambuxsingh, P. W. 7 Bhuria and two other persona came to Nojali's house and inquired from her whether she knew anything about the whereabouts of Idan. It is stated that in the presence of all these persons, Mt. Nojali admitted that she had killed Idan and also pointed out the place where she had burried him. P. W. 7 Bhuria dug the ground about 9" to 12" deep and saw one arm of the dead body. Thereupon Shankerlal sent the First Information Report Ex. P-1 to the police station Jaswantgarh with Karnia. In this report all the details, subsequently furnished on the record as regards Mt. Nojali having confessed the guilt were not mentioned nor was it stated that the dead body had been recovered at her instance. On the contrary it was mentioned that after considerable search the dead body bad been found to be lying inaide the Bara of the house of the accused. Investigation was taken in hand and the dead body was dug out and identified as that of Idan. The Farsi with which the offence is alleged to have been committed was also recovered from the house of Mt. Nojali and bloodstained earth and stones were also collected from the spot. The dead body was sent for post mortem examination and 4 lacerated wounds in different parts of the body were found to have been inflicted by some sharp-edged weapon. In the opinion of the doctor, injury NO, 1 on the right side of the neck was sufficient to have caused instantaneous death. The accused Mt. Nojali was arrested on 8th May 1948 and produced before the First Class Magistrate, Didwana on 10th May 1948 at about 4.15 P. M. for her confession being recorded. The confession was actually recorded on lath May 1948. Ultimately the accused was challaned under Section 802, M. P. 0. and committed to the Sessions Court to take her trial. The confession was retracted by her both in the Court of the committing Magistrate and in that of the learned Sessions Judge. She denied having committed the offence and produced no defence. The prosecution relied upon the statement of Mt. Heeran, the retracted confession, extra-judicial confession and the evidence regarding recovery of the corpse, the Farsi and and the blood-stained earth and stones. The learned Sessions Judge relying upon all this material came to the conclusion that the accused bad committed the offence and accordingly convicted and sentenced her as stated above.

(3.) In our opinion, the material which has been placed on the record by the prosecution is far too meagre for the conviction of the accused being upheld. In the first instance there is absolutely no evidence of any motive which could possibly have induced the accused to commit the offence. Admittedly there was no greed on the part of the accused for having killed Idan as much as the dead body was recovered with all the ornaments intact. What else could the poor boy have done in order to induce the accused to do him to death, the prosecution has not deemed it fit to develop on the record. It was suggested by Mt. Heeran in her statement in the Court of the committing Magistrate that Mt. Nojali had set up an illicit connection with one Asu Brahmin and that this Asu had suddenly disappeared after the commission of the murder. What was exactly intended by the prosecution in making this witness depose to this effect, it is difficult to understand. Probably, it was intended to suggest that the boy had seen Mt. Nojali and Asu in some awkward position and since they were afraid of this matter leaking out, Mt. Nojali killed the boy. That would, however, leave an important fact unexplained and that is, why Asu disappeared after murder. If it was intended to suggest that it was Asu who had killed the boy, it would rather be far fetched as there is absolutely nothing on the record to connect him with the offence and it would also weaken the prosecution story placed on the record. Even this suggestion that the accused bad been seen with Asu in some awkward position is a poor conjecture and no possible conclusion can be based upon it. In the circumstances, the fact remains that if Mt Nojali had committed the murder, she had done so without any motive whatsoever. It is true that in criminal cases the evidence of motive is immaterial so long as there is sufficient evidence on the record to connect the accused with the offence. Accordingly in this case, the question is whether such evidence is forthcoming on the record.