Calcutta High Court (Appellete Side)
Priya Bagdi @ Priyo Bagdi vs The State Of West Bengal on 18 May, 2023
Author: Debangsu Basak
Bench: Debangsu Basak
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IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Debangsu Basak
And
The Hon'ble Justice Md. Shabbar Rashidi
CRA 368 of 2021
With
CRAN 2 of 2022
Priya Bagdi @ Priyo Bagdi
Vs.
The State of West Bengal
For the Appellant : Mr. Suman De, Adv.
For the State : Mr. Sudip Ghosh, Adv.
Mr. Bitasok Banerji, Adv.
Hearing Concluded on : May 1, 2023
Judgement on : May 18, 2023
DEBANGSU BASAK, J.:-
1.The appellant has assailed the judgement of conviction dated July 4, 2019 and the order of sentence dated July 5, 2019 passed by the learned Additional Sessions Judge, Fast Tract Court, Suri, Birbhum in Sessions Trial No. 02/November/2017 arising out of Sessions Case No. 83/2017.
2. By the impugned judgement of conviction, the appellant has been convicted under Section 302/34 of the Indian Penal Code, 1860. By the impugned order of sentence, 2 the appellant has been awarded imprisonment for the remainder of her natural life for the offence under Section 302/34 of the Indian Penal Code, 1860 and to pay a fine of Rs. 10,000/- and in default to undergo rigorous imprisonment for 1 year more. The sentences had been directed to run concurrently.
3. Learned advocate appearing for the appellant has submitted that, the prosecution failed to prove the charges beyond reasonable doubt. He has contended that, the prosecution did not examine any witness as an eyewitness to the incident. The prosecution had withheld vital witness which creates a shadow of doubt on the genuineness of the case of the prosecution.
4. Learned advocate appearing for the appellant has contended that, the examination of the appellant under Section 313 of the Criminal Procedure Code was not done in conformity with law. The questions that had been put to the appellant in her examination were in a jumbled up manner and question No. 8 in particular was as long as half a page. Therefore, the appellant had been prevented from understanding the question and giving a rational answer thereto.
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5. Learned advocate appearing for the appellant has referred to the deposition of prosecution witness No. 1 and the written complaint filed by her being Exhibit1. He has contended that, there are contradictions in respect of the version relating to the cause of death of the victim which enures to the benefit of the appellant.
6. Learned advocate appearing for the State has referred to the evidence of the prosecution witnesses. He has contended that, a child of the appellant born out of her first marriage was brutally murdered. The appellant along with the co-accused who is her husband, are answerable under Section 106 of the Indian Evidence Act, 1872 as to the cause of death of the victim. Neither the appellant nor her husband has explained the death of the victim.
7. Relying upon 2007 Volume 12 Supreme Court Cases 230 (Aloke Nath Dutta and Others vs. State of West Bengal) learned advocate appearing for the State has submitted that, the appellant recorded a confessional statement which was tendered in evidence and marked as Exhibit 11. He has contended that, the Trial Court rightly convicted the appellant and awarded a just punishment for the crime committed.
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8. Police had received a written complaint dated April 21, 2017 from Prosecution Witness (PW) No. 1 with regard to the murder of the victim. In the written complaint, PW 1 had stated that she went to the house of the victim and found the victim to be lying unconscious. The victim had been taken out from his residence by neighbours and admitted to the Suri Sadar Hospital. The appellant had remained silent when PW 1 asked her as to what happened to her son. When pressurised, PW 1 had confessed in front of everybody that the appellant and her husband together had beaten the victim. The appellant had held two legs of the victim and her husband kept assaulting the victim on his chest holding his mouth. As a result of such assault the victim had lost his consciousness. The doctor at the Suri Sadar Hospital had declared the victim dead after examination. The victim was the son of the appellant from her first marriage.
9. Police had registered Suri Police Station F.I.R No. 134/17 dated April 21, 2017 under Section 302/34 against the appellant and her husband. Police had conducted an investigation on the basis of such First Information Report and submitted a charge sheet under Sections 302/34 of the 5 Indian Penal Code, 1860 bearing No. 184/17 dated June 14, 2017 against the appellant and her husband.
10. Court had framed charges as against the appellant and her husband on November 3, 2017 under Sections 302/34 of the Indian Penal Code, 1860. The appellant and her husband had pleaded not guilty to the charges and claimed to be tried. At the trial, the prosecution had examined 11 witnesses and relied upon various evidences to bring home the charges as against the appellant and her husband.
11. The case of the prosecution at the trial had been that, the appellant and her husband with the common intention on April 21, 2017 at their residence committed murder of the victim by intentionally causing death of the victim who was 2 years of age at that time.
12. PW 1 is associated with a Non-Government Organization and involved in welfare activities of the locality and had lodged the written complaint with the police with regard to the incident of murder. In her testimony, PW 1 had stated that, the victim died in the house of the appellant and her husband. She had heard about the death at about 7.30 A.M in the morning from the local people and after hearing such news of death she went to the house of the appellant. 6 She had found the dead body of the victim to be removed to Suri Hospital by the neighbour. The neighbours of the appellant had informed her that the victim died due to breathing problem. PW 1 had stated that, she did not see the appellant and her husband in their house at that time. In the evening of the incident, she had been to the police station with some local people and at that time police obtained her left thumb impression on some paper. She had identified the appellant in Court.
13. An acquaintance of the appellant and her husband had deposed as PW 2. She had stated that, she heard hue and cry in the morning on the day of the incident and came to know from the local people about the death of the victim. She had gone to the house of the appellant and there she came to learn from the neighbours that the appellant took the victim to the hospital. She had heard from the local people that the victim was suffering from breathing problems. She had stated that, she did not know the cause of death of the victim. PW 2 had been declared hostile by the prosecution and was cross- examined. On cross-examination by the prosecution, PW 2 had denied the suggestions put to her by the prosecution. 7
14. Another acquaintance of the appellant and her husband had deposed as PW 3. She had identified the appellant and her husband in Court. She had stated that, the appellant and her husband had one child, namely, the victim. She had stated that, she did not know the cause of death of the victim. She had given the statement before the Magistrate which was tendered in evidence and marked as Exhibit 1. She had witnessed the seizures made by the police on April 23, 2017. Signature on such seizure list was marked as Exhibit 2/1.
15. A neighbour of the appellant and her husband had deposed as PW 4. She had stated that, the victim died in the house of the appellant and her husband and that she did not know how the victim died. She had stated that after the death of the victim police came to the house of the appellant and the victim, seized one glass and one pillow from such house. Her left thumb impression on the seizure list dated April 23, 2017 had been tendered in cross-examination and marked as Exhibit A.
16. A lady constable had deposed as PW 5. She had stated that on April 24, 2017 she had produced PW 3 and PW 6 before the learned Magistrate for recording their statements 8 under Section 164 of the Criminal Procedure Code, She had identified such witnesses before the Magistrate.
17. Another acquaintance of the appellant and her husband had deposed as PW 6. She had identified the appelland and her husband in Court. She had stated that the victim was aged about 3 years and that the victim expired having breathing problem while being taken to the Suri Hospital. She had stated that, she did not see the incident and that she did not know the cause behind the death of the victim. She had stated that, she gave a statement before the learned Magistrate where she put her left thumb impression on such statement.
18. The police constable who had taken the dead body of the victim had deposed as PW 7. He had stated that, he took the dead body of the victim from Suri Hospital to the police morgue for post mortem examination. He had tendered the dead body challan which was marked as Exhibit 3/1. The doctor who had conducted the post mortem on the dead body of the victim had deposed as PW 8. He had narrated about the injuries that he had found on the dead body. He had opined that the death was due to the effects of the injuries noted in the post mortem report and consistent with the history of 9 being homicidal and ante mortem in nature. He had further opined that the injuries found over the dead body of the victim were caused by physical assault on him and that such injuries was sufficient to cause his death. He had also stated that before conducting the post mortem examination, he went through the concerned inquest report wherein it was mentioned that the death of the victim occurred due to physical assault by his parents in course of a family quarrel. The post mortem report had been tendered and marked as Exhibit 4.
19. The post mortem doctor had been cross-examined on behalf of the appellant and her husband. The opinion that had been expressed by PW 8 with regard to the cause of death of the victim could not be dislodged. He had stated in cross- examination that the cresentic injury mark as appearing upon the dead body of the victim were of some adult person and not that of a child. He had also stated in cross-examination that the death of the victim was not due to any asphyxia but was due to injuries caused on him.
20. A sub-inspector of police had deposed as PW 9. He had stated that, he performed the inquest of the dead body of the victim. On interrogation he had come to know from the person 10 who had accompanied the dead body of the victim that the parents of the victim killed him due to their quarrel as the mother of the victim got married with the step-father of the victim for the second time. He had tendered the inquest report which was marked as Exhibit 5.
21. Another sub-inspector of police had deposed as PW 10. He had received the written complaint from PW 1 and started the police case. He had tendered his endorsement on the written complaint which was marked as Exhibit 6. The formal First Information Report had been tendered in evidence and marked as Exhibit 7.
22. The Investigating Officer had deposed as PW 11. He had narrated about the course of investigation in his oral testimony. He had prepared the rough sketch map along with the index of the place of occurrence which was tendered in evidence and marked as Exhibit 8/1. He had examined available witness and facilitated recording of statements under Section 164 of the Criminal Procedure Code. He had seized various articles. He had tendered two confessional statements of the husband of the appellant and the appellant which were marked as Exhibit 9 and 9/1 respectively. The seizure list prepared by him had been tendered in evidence and marked 11 as Exhibit 2. The carbon copies of the two labels prepared had been marked as Exhibit 10 and 10/1. The two statements made by the husband of the appellant and the appellant had been tendered in evidence and marked as Exhibit 11 and 11/1. The 164 statement of PW 6 had been tendered in the evidence and marked as Exhibit 12 on consent. He had identified the appellant and her husband in Court.
23. The appellant had been examined under Section 313 of the Criminal Procedure Code where she denied any knowledge of the incident and claimed to be innocent. She had denied that no quarrel or assault took place. She had declined to adduce any evidence.
24. PW 8 had performed the post mortem on the dead body of the victim. He had in his oral testimony stated that the victim was about 2 years of age. He had described the injuries he had found on the dead body of the victim which are as follows :
"1. one bruised abrasion measuring about 2 inches in diameter present over the cheeks of both the sides about 1 inch away from the lateral end of the nostrils;12
2. One abraded bruise measuring 1 inch x 0.3 inches placed over the outer surface of the lower lip near the philtrum;
3. One abraded bruise 01 inch x 0.2 inches present over the inner aspect of the upper lip near the philtrum;
4. One cresentic linear abrasion mark measuring 1/2 inch x 0.1 inch suggestive of nail mark present over the anterior aspect of the anterior abdominal wall 3 inches away from umbilicus;
5. Multiple bruises with abrasions present deffusely over the anterior aspect of the chest wall and abdominal wall;
6. Two cresentic bruise marks measuring 01 inch x 0.3 inches with concavity inwards present over the lateral aspect of both the legs in the lower 1/3rd with presence of multiple scratch abrasions spread over the anterior aspect of both the legs in the lower part;
7. On dissection deffuse extra vascation of blood over the anterior aspect of both the side of chest wall;
8. Fracture of 3rd to 7th ribs on the right side and 4th to 7th ribs on the left side at different sites with punctured lacerated wound of the lunges and pleura at the corresponding sites of the fractured ends and extra vascation of blood in and around the fractured ends;
9. Lacerated wound with rupture of the spleen at the higher surface and the superior border and that of the liver and the postero superior surface;
10. Defuse extra vascation of blood over, the scalp over the left temporal mandibula of the scalp;13
11. Sub-dural haematoma with blood clots present over the left temporo parital area of the brain;
12. Both the kidneys were bruised on the posterior surface.
All the injuries were found fresh in origin and show evidences of vital reactions. The abrations are non scabbed. The margin of the lacerated wound are irregular with extra vascation of blood in and around. No other injuries other than above injuries could be detected even after careful dissection and examination with the help of a hand lense.
No foreign body could be detected in the body of the deceased.
Viscera was collected, preserved, labeled and sealed and handed over to police personnel for chemical examination."
25. PW 8 had opined that the death of the victim was due to the effects of the injuries as noted in the post mortem report being Exhibit 5 and as detailed by him in his oral testimony and that they were consistent with the history of being homicidal and ante mortem in nature. He had also opined that the injuries were caused by physical assault on the victim and that the injuries were sufficient to cause his death. Such opinion of PW 8 had not been dislodged on behalf of the appellant despite cross-examination by PW 8. 14
26. Prosecution had therefore established that the victim was murdered. PW 1 to 4 and 6 in their testimonies had stated that the victim had been removed from his house to the hospital. The appellant is the mother of the victim and that the victim is a child born out of the wedlock of the appellant and her first husband. Appellant had married the co-accused. The victim was staying with the appellant and his step-father.
27. Appellant and her husband as the step-father of the victim therefore had an obligation under Section 106 of the Indian Evidence Act, 1872 to explain the death of the victim in their house. Appellant had failed to explain such death. On the contrary, both the appellant and the co-accused that is her husband had recorded statements under Section 164 of the Criminal Procedure Code confessing their guilt. The statement of the appellant had been tendered in evidence and marked as Exhibit 11/1.
28. In Exhibit 11/1, the appellant had described in graphic detail as to how the victim was assaulted by her and her husband on the fateful day leading to the death of the victim. The graphic description of the assault has been corroborated by the injuries that PW 8 had found on the dead body of the victim. The appellant had described that she had 15 bitten the cheeks of the victim. The victim had been assaulted with a glass bottle on his head. The victim had been assaulted on several parts of the body. Injuries commensurate with the nature of assault described in Exhibit 11/1 had been found by PW 8 and Exhibit 5 corroborate the assault that the victim was subjected to by the appellant and her husband.
29. In Aloke Nath Dutta and Others (supra) the Supreme Court has dealt with the issue of evidentiary value of judicial confession. It has held as follows :-
"Confession ordinarily is admissible in evidence. It is a relevant fact. It can be acted upon. Confession may under certain circumstances and subject to law laid down by the superior judiciary from time to time form the basis for conviction. It is, however, trite that for the said purpose the court has to satisfy itself in regard to: 9i) voluntariness of the confession; 9ii) truthfulness of the confession; (iii) corroboration."
30. In the facts of the present case, nothing has been placed on record to suggest let alone establish that the confession made by the appellant was not truthful or that no reliance should be placed thereon. In any event the appellant has failed to explain the death of her child in view of the provision of Section 106 of the Indian Evidence Act, 1872. 16
31. It had been contended that, the circumstances put to the appellant in her examination under Section 313 of the Criminal Procedure Code was congulated and therefore would not be understood by the appellant. In support of such contention attention of the Court has been drawn to question No. 8 in particular. Question No. 8 has put the injuries that PW 8, post mortem doctor had found on the dead body of the victim. The question that had been put was that in view of the several injuries noted on the dead body of the victim, what did the appellant want to say about the same. In reply, she had denied knowledge. Secondly, she had not explained the cause of the injuries on the dead body of the victim. However, in her statement being Exhibit 11/1, she had described the nature of assault which stands corroborated by the injuries noted on the dead body of the victim.
32. In the facts and circumstances of the present case, we are unable to agree with the contention of the appellant that the questions put to the appellant in her examination under Section 313 of the Criminal Procedure Code was congulated.
33. It has been contended on behalf of the appellant that, PW 1 made a statement in her deposition which was contrary to the contents of the written complaint being Exhibit 1. In 17 Exhibit 1, PW 1 had stated that, the appellant confessed that, she and her husband assaulted the victim leading to the death of the victim while in her oral testimony PW 1 did not allude to such fact and stated that the neighbours of the appellant informed her that the victim died due to breathing problem. It has also been contended that despite such statement, PW 1 was not declared hostile by the prosecution.
34. Oral testimony of PW 1 to the fact, that she had been informed by the neighbours that the victim died due to breathing problem and in view of such statement, she having not been declared hostile, in our view, is not fatal to the case of the prosecution. Medical evidence has established that the death was due to the injuries suffered by the victim. There are sufficient evidence on record to establish the guilt of the appellant in murdering her son as noted hereinabove. Appellant has not established any prejudice with regard to non-examination of Taslima Bibi. Taslima Bibi had witnessed the inquest. None of the inquest witnesses had been examined by the prosecution. The case of the prosecution rests on the quality of the evidence led at the trial and not on the number of witnesses that had been examined. Significantly, Exhibit 2, being the inquest report had also spoken about an altercation 18 between the appellant and her husband regarding the victim and the victim being assaulted by the appellant.
35. In view of the discussions above we have found no ground to interfere with the impugned judgement of conviction or the order of sentence. We hereby affirm the same.
36. The sentence awarded shall run concurrently.
37. CRA 368 of 2021 is dismissed.
38. With the dismissal of CRA 368 of 2021 nothing survives in the interim application being CRAN 2 of 2022. The same is also dismissed.
39. A copy of this judgement and order along with the Trial Court records be remitted to the appropriate Court forthwith for necessary action.
40. Urgent Photostat certified copy of this judgement and order if applied for be made available to the parties expeditiously.
[DEBANGSU BASAK, J.]
41. I agree.
[MD. SHABBAR RASHIDI, J]