Calcutta High Court (Appellete Side)
Sankar Basak @ Sanat Basak vs The State Of West Bengal on 10 January, 2018
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
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Item no. 304
Aloke/AB/ss
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Present :
The Hon'ble Justice Joymalya Bagchi
And
The Hon'ble Justice Rajarshi Bharadwaj
C.R.A. 719 of 2005
SANKAR BASAK @ SANAT BASAK
Versus
The STATE OF WEST BENGAL
For the Appellant : Mr. Partha Sarathi Bhattacharyya, Advocate
For the State : Mr. Pinak Kr. Mitra, Advocate
Heard on : 10.01.2018
Judgement on : 10.01.2018
Joymalya Bagchi, J.:
The appeal is directed against the judgement and order dated 05.08.2005 passed by the learned Additional Sessions Judge, 3rd Fast Track Court, Malda, in Sessions Case No. 3 of 2001 (Sessions Trial No. 6(12) of 2003) convicting the appellant for commission of offence punishable under Sections 498A and 302 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for three years and to pay a fine of Rs.200/-, in default, to suffer simple imprisonment for three months more for the offence punishable under Section 2 498A and to suffer rigorous imprisonment for life and to pay a fine of Rs.2,000/, in default, to suffer simple imprisonment for one year more for the offence punishable under Section 302 of the Indian Penal Code, both the sentences to run concurrently.
The prosecution case, as alleged, against the appellant is to the effect that appellant was married to one Ranjana Basak (P.W. 6) on 29th November, 1990 according to Hindu rites and customs. The appellant subjected her to physical and mental torture. On 6th December, 1991 she gave birth to a female child. The appellant tried to kill the child by mixing petrol in her milk. But noticing the smell of petrol, Ranjana Basak did not feed her child with such milk. On 16.08.1992 in the morning around 6 a.m. Ranjana had gone to the bathroom and when she came out she found a small bottle lying by the side of her daughter and her daughter was turning blue. The appellant was present in the room. She raised hue and cry whereupon the appellant took away the bottle and left the place. Neighbours arrived at the spot and with the help of neighbours she admitted her child to the hospital. Soon after admission her child expired. Her brothers came to the spot and she narrated the incident to the neighbours and her brothers. She lodged first information report being EBPS Case No. 278/92 dated 16.08.1992 under Sections 498A and 302 of the Indian Penal Code against the appellant. The postmortem report of the victim confirmed that the child had died due to endo sulphan poisoning. Charge sheet was filed against the appellant under Sections 498A/302 IPC.
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The case being a sessions triable one was committed to the Court of Sessions and transferred to the Court of the Additional Sessions Judge, 3rd Fast Track Court, Malda for trial and disposal. Charges were framed under Sections 498A and 302 of the Indian Penal Code against the appellant.
The appellant pleaded not guilty and claimed to be tried. It was the specific defence of the appellant that he had gone out for morning walk and was not present at the house at the time of occurrence and upon return to his residence he found that his daughter had been removed to the hospital for treatment. He went to the hospital and signed in the records of the hospital as Sanat Basak as he was also known by the said name.
Prosecution examined 16 witnesses and exhibited a number of documents to prove its case. The appellant examined one witness to probabilise his defence that he had gone out for morning walk at the time of the incident.
In conclusion of trial, the trial judge by judgment and order dated 05.08.2005 convicted and sentenced the appellant, as aforesaid.
Mr. Bhattacharyya, learned counsel appearing for the appellant submitted that all the circumstances relied by the prosecution have not been proved beyond reasonable doubt and they do not form a complete chain unerringly pointing to the guilt of the appellant. The appellant had probabilized the fact that he was not 4 present at the residence and the trial Judge arbitrarily refused to rely on the evidence of D.W. 1. No motive on the part of the appellant to commit the crime has been proved. The evidence on record that the appellant had earlier tried to administer poison to his daughter is not supported by any contemporaneous document. It is submitted that P.W. 6 and her family members came from a financially sound background and were inimical to the appellant due to his poor financial status and had falsely implicated him in the instant case as an afterthought. Initially, no complaint had been lodged over the death of the child and an unnatural death case had been registered. He accordingly, prayed for acquittal of the appellant.
Mr. Mitra, learned counsel appearing for the State submitted that the appellant had taken prevaricating stance in his statement under Section 313 Cr.P.C. He also submitted that there is no explanation as to why the appellant had signed as 'Sanat Basak' instead of 'Sankar Basak' in the hospital records. The evidence of P.W. 6 with regard to the ill-treatment of the minor child by the appellant was corroborated by other witnesses. Evidence of D.W. 1 suffered from various improbabilities and was rightly discarded by the trial court. The appellant was in the room with the child at the time of incident and his alibi was found to be untrue. Thereafter the appellant had absconded from the place of occurrence. The circumstances clearly indicate that the appellant was responsible for the death of his minor daughter.
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The circumstances relied by the prosecution in order to establish the guilt of the appellant are as follows :
a) The appellant had inimical relations with his wife;
b) The appellant had tried to poison his daughter earlier by putting petrol into her milk but such attempt was aborted by her mother P.W. 6;
c) On 16.08.1992 at around 6 a.m. the appellant was alone with the child and while P.W. 6 was in the bathroom;
d) After coming out from bathroom P.W. 6 found that her child was turning blue and restless and she raised hue and cry;
e) P.W. 6 also found a small bottle by the side of the child. Hearing her cries, the neighbours assembled. The appellant fled away from the place of occurrence with the bottle.
f) P.W. 6 admitted the child in the hospital. Soon thereafter the appellant came to the hospital and signed in the medical document as Sanat Basak' instead of 'Sankar Basak'.
g) After death of the child and registration of the FIR, the appellant absconded.
Let me analyze the evidence on record to see whether the prosecution case based on the aforesaid circumstances establishes the guilt of the appellant beyond reasonable doubt.
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Firstly, it has been argued that there was inimical relations between the appellant and P.W. 6. Apart from the evidence of P.W. 6 and her relation, namely, P.W. 8 there is no independent witness who deposed that the appellant misbehaved with his wife or had subjected her to any mental or physical torture. The trial court also recorded that there was no physical assault or torture upon the housewife. On the other hand, it appears that the appellant who used to earn his livelihood as a lottery ticket seller was not in a financially stable position while P.W. 6 came from a financially sound family where her brothers were government employees and P.W. 8 was employed in the office of the local B.D.O. Admittedly, there was no dowry demand by the appellant. Hence, I find it difficult to believe that P.W. 6 had been subjected to any mental and physical torture by the appellant.
The second circumstance which the prosecution had sought to establish is that the appellant had earlier tried to poison his daughter by mixing petrol in her milk. His attempt was aborted as P.W. 6, the mother was vigilant and did not feed the child with such contaminated milk which smelt of petrol.
In this regard, P.W.6 has deposed that the appellant used to misbehave with her and once had mixed petrol with the milk meant for the child. As the milk smelt of petrol, she did not give such milk to the child. Thereafter, she kept strict vigil on the appellant with regard to the child. Her evidence in this regard is corroborated by her brother, P.W.8 who stated that the appellant mixed petrol with the milk of the baby and noticing the smell of petrol his sister did not feed 7 the child with such milk. Neighbours were told about that fact and the appellant was threatened not to commit such act in future.
Apart from these two witnesses, no other witness has deposed with regard to the attempt of the appellant to poison his own child on earlier occasion. It is difficult for me to accept the version of P.Ws.6 and 7 on this score for the following reasons. Firstly, the evidence of the witnesses with regard to the attempt of the appellant to put petrol in the milk of his child is gloriously vague and bereft of any material particular as to the date and time. Secondly, no contemporaneous complaint was made against the appellant with regard to such heinous act on his part to attempt to poison his own child. It is most improbable that P.W.6, the mother of the child, would have continued to stay with the appellant leaving the child in the latter's custody in the face of such gruesome conduct on his part particularly when she had option to shift the residence of her brothers, namely, P.S. 7 and 8 who resided in the same town. That apart, evidence of P.W.8 that the matter was taken up with the neighbours who threatened the appellant not to commit such conduct in future, is also not supported by any independent witness.
Under such circumstances, I am of the opinion that the aforesaid circumstance that the appellant attempted to put petrol in the milk of his own child does not appear to have been proved beyond reasonable doubt. 8
This brings me to the circumstances which took place on the date of the occurrence itself. The prosecution would like this court to believe that on 16.8.1992 at about 6.00 a.m. while P.W.6 had gone to the bathroom, the appellant was alone with the child and P.W.6 after coming out of the bathroom saw the child in a restless and distressed condition with a small bottle lying near her. On the other hand, the defence version is to the effect that the appellant had gone out for morning walk and was not present at the place of occurrence at all.
Prosecution primarily relies on the evidence of P.W.6, the mother of the victim, to prove its case. There is no doubt that P.W.6 being the mother of the victim is the most natural witness with regard to the circumstances which may have occurred on that day. P.W.6 deposed that in the morning of 16.8.1992 when she came out of the bathroom, she found her child was pale and weak and her eyes were coming out. She noticed a small bottle lying near the baby. She assumed that the appellant, who was alone with the child, had administered poison to her baby. She cried out loudly. The neighbours rushed to the house. With the help of neighbouors she took her daughter to the Sadar Hospital and informed her relatives. They came to the hospital. Initially her husband did not come to the hospital. Thereafter he was seen in the hospital and he wrote his name as Sanat Basak, which was not his real name. Her daughter died in the hospital. Her brothers, namely, Sachikanta, Chaitayanna and Nityananda were there. She told the facts to them. Police came and made inquest over the deadbody of her daughter. On completion of post mortem, she took custody of 9 the deadbody of her daughter. She admitted that she has filed a divorce case against her husband which was decreed and she married again. The name of her husband was Bhupal Chandra Das. Her version was supported by her brothers, P.Ws.7 and 8.
P.W.7 deposed that he wrote the first information report as per the dictation of his sister, Ranjana. He proved the first information report (Ext.5). He stated that he went to the hospital on 16.8.1992 and heard the fact from his sister. He admitted that the inquest of the deadbody of the child was made in his presence. He signed on the inquest report.
P.W.8 is another brother of P.W. 6. He deposed that his sister was married to Sankar Basak on 29.11.90. On 19.12.1991 Ranjana gave birth to a female child named Ruby Basak. After the marriage her sister was subjected to mental and physical torture. Her sister informed them about such torture. They tried to settle the matter. The appellant mixed petrol with the milk of the baby, but finding the smell of petrol his sister did not feed the child with such milk. Neighbours were informed about the fact and they threatened the appellant not to do such incident again. On 16th August, 1992 around 8.00 a.m. he came to know that his bhagni Rubi was in the hospital. He came to know from neighbours that the appellant administered poison to Rubi. Police held inquest over the dead body in their presence. He signed in the inquest report (Ext. 2/2). 10
In cross-examination, he stated that Sankar Basak was a lottery ticket seller. He did not have any permanent shop. His financial condition was not good. They are all government employees. He was an employee of the B.D.O., Malda. He admitted that he had not lodged any diary with the police station with regard to the fact that the appellant had attempted to poison the child earlier. He reached the hospital at 8.30 a.m. P.W.1 is the only independent witness who has supported the prosecution case. He stated that Ranjana was married to the appellant on 29.11.90. A female child was born who was aged about 9 months at the time of the incident. He heard from Ranjana that the matrimonial life of the couple was not happy. Ranjana told him that on the date of the incident she went to the bathroom and when she came out, she saw her child lying on the floor and her body was turning blue and froth was coming from her mouth. A small bottle was lying there. Her husband took away the bottle. The child was taken to the hospital and died. He was cross-examined with regard to the omissions in his earlier statement recorded before the police officer in the instant case.
I have summarized the evidence of the prosecution witnesses with regard to the incidents leading to the unfortunate death of the minor child in the hospital due to poisoning. Although P.W.6 claims that she suspected that the appellant had caused death of the victim by administering poison and had informed such fact to her neighbours as well as her brothers, P.Ws.7 and 8, it is 11 apposite to note that after the victim had died, an unnatural death case was registered and at the time of holding inquest over the dead body of the victim on 6.50 A.M. by P.W. 4 and no allegation had been levelled against the appellant. Such conduct on the part of P.W.6 as well as her relations in not accusing the appellant as the perpetrator of the crime at the first instance gives rise to a serious doubt as to the manner and course in which the unfortunate incident had occurred.
It is also strange as to why P.W.6 did not confront her husband, that is the appellant, as to her suspicion that he had poisoned the victim as soon as she came out of the bathroom and found the child in a distressed condition. On the other hand, she merely states that finding the distressed condition of the child she raised a hue and cry. As a result, the neighbours assembled at the place of occurrence. None of the neighbours including P.W. 1 who rushed to the spot had seen the appellant leave the residence with the bottle of poison, as claimed by P.W. 6. Hence, there is no corroboration of the version of P.W.6 that the appellant had hurriedly left the place of occurrence along with the bottle of poison soon after she had raised hue and cry and neighbours had assembled. On the other hand, the fact that the appellant was absent in the house at the time when the neighbours including P.W.1 came to the spot probabilizes the defence version that he had gone out for a morning walk as deposed by D.W.1 in the instant case. Evidence of D.W.1 was disbelieved by the Trial Judge on the premise that he was unable to state the date of Durga Puja in the relevant year although he had remembered the fateful day when he claimed to have accompanied the 12 appellant for a morning walk. One must acknowledge that a tragic incident like loss of a minor child of a friend remains indelibly etched in one's memory than regular events and other festivities. Hence, failure of D.W.1 to specify the date of Durga Puja of the relevant year is no reason to improbabilise the fact that he could recount the date of the incident.
It was also noted by the trial judge that no questions had been put by the appellant to the landlord and landlady (P.W.11 and P.W.12) with regard to his habit of going out for morning walk.
P.W.11 and P.W.12 were declared hostile and had not supported the prosecution case. Failure to put any question to them with regard to the fact that the appellant had gone out for morning walk on the date of the incident is of little relevance as none of them used to accompany the appellant for morning walks and more so when P.W.12 was not at home on that day.
Furthermore, the fact that D.W.1 subsequently came to know about the death of the child of the appellant from P.W.12 cannot be a ground to disbelieve his evidence as disbelieved as improbable. The trial court observed that as P.W.12 was not present in his house on the date of incident, it was not possible for D.W.1 to know of the incident from him. Reading the evidence of D.W.1 I do not find anything to show that such intimation had been given to the said witness on the day itself. On the other hand, both the witnesses are residents of 13 the same locality and D.W.1 may have heard of such incident from P.W.12 on a subsequent date. Hence, I am unable to persuade myself to throw out the evidence of D.W.1 as a wholly unreliable witness.
In the light of the aforesaid facts, it appears that the case is hinged on the rival versions of P.W.6 on the one hand and that of D.W.1 on the other hand as to the presence of the appellant at the place of occurrence. The conduct of P.W.6 in not confronting immediately her husband as to the circumstances in which the child was ingested poison at the spot and the fact that none of the neighbours including P.W.1 saw the appellant leaving his house after the incident gives rise to a serious doubt as to whether the appellant was at all present at the place of occurrence or not or had gone out for a morning walk at the time of the unfortunate incident as claimed by him in his defence.
It is also pertinent to note that the appellant had consistently taken the plea that he was not present at the place of occurrence and had gone out for morning walk. Learned lawyer for the State drew my attention to the fact that in response to question no.12 during his examination under Section 313 Cr.P.C. the appellant is said to have stated that he was present at the house. I am of the opinion that the recording of the said answer is an inadvertent mistake particularly when in the course of the entire examination of the appellant under Section 313 Cr.P.C. during the trial he had consistently maintained that he had gone out for a morning walk at the time of the incident and upon his return he 14 found that his minor child had been taken to the hospital for treatment. Hence, I am of the opinion that a stray contrary answer presumably recorded out of inadvertent mistake by the Presiding Officer cannot be given undue importance in the backdrop of the consistent alibi raised by the appellant in the course of trial of the case.
The prosecution has also relied on the conduct of the appellant in recording his name in the hospital papers as Sanat Basak instead of Sankar Basak. It has also been brought to my notice that a relation of the appellant, P.W.13, in cross-examination, failed to say whether the appellant was known as Sanat Basak or not. I have examined such plea in the backdrop of the materials on record. I find that in the course of trial, the appellant has signed as Sanat Basak as well as Sankar Basak. It is, therefore, likely that the appellant was also known by a different name. The fact that the appellant had attended the hospital when the victim was being treated therein is an extenuating circumstance in his favour. Hence, I fail to appreciate as to why he would use a false name to hide his identity when his presence at the hospital would, in fact, establish his bonafides and concern for the wellbeing of his child.
It is the defence of the appellant that he had gone to the hospital when was heard after returning from his morning walk that his ailing daughter had been admitted therein and hence I do not find any reason as to why the appellant would use the false name to hide his identity at the hospital. 15
It has been also claimed that the appellant has absconded from the place of occurrence after the registration of first information report. Mere abscondence of an accused would not establish his guilt. Furthermore, the conduct of the appellant must be understood in the factual backdrop of the case. In the instant case the appellant came from the financially weak background. On the other hand, his wife and brothers-in-law were well-established individuals with government jobs and financial might. They had lodged the first information report against the appellant alleging that he had murdered his own daughter. Under the circumstances, the appellant had evaded arrest out of fear and such conduct on his part cannot be treated as an additional circumstance pointing to his guilt particularly when the other circumstances do not appear to be either convincing as have been proved beyond doubt.
Furthermore, I do not find any motive on the part of the appellant to commit the crime. There may or may not have been disharmony in the relation between the couple. However, there is no whisper that the appellant suspected his wife of infidelity nor did he doubt the paternity of the child. As discussed above, the prosecution case that the appellant had earlier tried to poison his daughter does not appear convincing. Hence, there is no iota of evidence indicating the reason as to why the appellant would take the life of his own daughter.
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I am aware that if the prosecution case is proved beyond reasonable doubt, motive of commission of crime is irrelevant. However, the instant case is based on circumstantial evidence and as discussed above, some of the circumstances particularly the circumstance that the appellant had earlier tried to poison his daughter's milk or that he was present at the house at the time of occurrence does not appear to have been proved beyond reasonable doubt.
In this factual backdrop, I have made an endeavour to delve into the motive of the appellant for commission of such crime but I have failed to elicit anything that may prompt him to commit the crime.
In view of the aforesaid discussion, I am constrained to hold that the prosecution has not been able to prove his case beyond reasonable doubt and the appellant is entitled to the benefit of the doubt.
Conviction and sentence of the appellant is set aside. The appellant shall forthwith be released from custody upon executing a bailbond to the satisfaction of the learned Chief Judicial Magistrate, Malda which shall remain in force for six months in terms of Section 437A of the Code of Criminal Procedure.
The appeal is, accordingly, allowed.
Advance copy of the judgement be sent to the Berhampore Central Correctional Home, Murshidabad for necessary compliance. 17
Copy of judgement along with lower court records be sent down to the trial court at once.
(Joymalya Bagchi, J.) I agree.
(Rajarshi Bharadwaj, J.)