EMPEROR Vs. MUSAMMAT JAGIA

JUDGEMENT

(1.) This is a reference under Section 374, of the Criminal P. C. for confirmation of the sentence of death passed upon Musammat Jagia of village Parori, Police Station Sitamarhi, under Section 302 of the Indian Penal Code. She has also tiled an appeal which has been heard along with the reference.

(2.) The accused was charged with having murdered a boy named Cholhwa Chokra aged about four years on October 3, 1937, by drowning him in the Lakhandai river which flows on the north of the village Parori. The deceased boy's father Khublal (P.W. No. 1) and the accused Musammat Jagia's husband Lakhan are separated cousins living, however, in the same compound. About eleven or twelve days before the occurrence Musammat Jagia was accused by Khublal of having stolen Rs. 3 from his machan. This led to a quarrel between the two families. The matter was referred to a panchayeti. The panches decided that Lakhan would place Rs. 3 in their presence and Khublal would, if his story of theft was true, take a special oath and pick up the money. This was done and Khublal took the money. Upon this Musammat Jagia felt very much offended and she, according to her own case, abused not only Khublal but the panches also and, according to the prosecution, abused Khublal only. On the morning of the day of occurrence the deceased boy after taking food went out of the house and it was supposed by his parents that he went out for playing with other boys as usual. Khublal, the father, who appears to be a day-labourer, went to the fields for work and returned home at about 10 in the morning and took his bath and food. Then the parents noticed that the boy had not still returned. Khublal then went to search for him and was told by Musammat Rupiya (P.W. No. ) whose house is at a distance of about 260 paces to the north of his house that she had seen the accused taking the boy towards the gachi which is further north of her (Musammat Rupiya s) house. Khublal then came back and questioned the accused about the boy. She replied that she had turned the boy back from the gachi. Khublal again went out in search of the boy. He met Sant Mahto (P.W. No. 4) who told him that while he was sitting in his guava gachi which is to the north of the gachi previously mentioned, he heard the screams of a boy from the river which is to the further north and shortly afterwards he saw the accused coming back from the direction or the river by the side of his guava gachi, Khublal then went towards the river and proceeded along its bank. About the evening he met Janak Mahto (P.W. No. 7) who told him that in the morning he had noticed the body of a boy floating in the river. Khublal could not find any trace of his boy and returned home. He went to the chaukidar who was then absent. The chaukidar subsequently came to his house and after hearing everything from him arrested the accused. He requested the chaukidar to accompany him to the thana. When the chaukidar left for the thana he tied the accused to a cattle peg in the house of one Dhanraj and left her in chagne of Babulal (P. W. No. 10). Khublal and the chaukidar reached the thana that night at a very late hour and the first information was lodged by Khublal on the following morning. During the night when the accused was in charge of Babulal it appears that he untied her hands and then she is said to have confessed her guilt in the following words: Ham mar aeli thik. Hamara jan bache so upaya karo. This statement is said to have been made to Babulal when nobody else was present. The Sub-Inspector came to the village next morning and started investigation. He: took the accused to the place from where she said she had sent back the boy. The Sub-Inspector also went to the river bank and found some foot-prints on the way at different places which appeared to indicate that towards the direction of the river an adult and an infant had gone whereas at the time of return from the river there was only an aduit. As a certain place on the bank of the river he marked only two foot-prints, one of an adult and another of an infant. I should mention here that the evidence shows that that morning, before the Sub-Inspector came to the village, there was rain. The river was also in flood. The same day, i.e., October 4, 1937, in the afternoon the dead body of the boy was recovered from the river at a place 3? or 4 miles down stream from the supposed place of occurrence. The body was sent for post mortem examination, but the doctor found no definite signs of drowning and could give no definite opinion regarding the cause of death. On October 6, 1937, the Sub-Inspector submitted a namo kamal charge sheet under Section 302, Indian Penal Code. On October 7, 1937, the accused was committed by the Sub-Divisional Magistrate to the Court of Session. Some of the footprints which the Sub Inspector had noticed were preserved, where possible, and those were sent to the foot-print expert (P.W. No. 11) for examination. This expert submitted his report after the commitment order had been passed and therefore his evidence was not before the Committing Magistrate. He, however, gave evidence before the Sessions Court which went to support the prosecution story.

(3.) The learned Sessions Judge disagreeing with the assessors has found the accused guilty of murder. The evidence on which the prosecution rests may be divided under two heads: (1) the extra-judicial confession said to have been made by the accused to Babulal: and (2) the circumstantial evidence. The circumstantial evidence consists of the following facts: (1) On the morning of the day of occurrence Rupiya(P.W. No. 2) and Musammat Phulbatia (P.W. No. 3) whose houses are at a distance of about 260 paces to the north of the house of the accused saw her taking the boy to the gachi on the north of their houses. (2) Sant Mahto (P.W. No. 4) while sitting in his guava gachi at a short distance from the river heard the screams of a boy from the river and shortly afterwards he saw the accused coming back hurriedly from the direction of the river. (3) Foot-prints were noticed at two different places on the way to the river which would indicate that an adult and an infant had gone towards the river but an adult came back alone from the river.