Calcutta High Court (Appellete Side)
Sanjay Das & Ors vs State Of West Bengal on 29 August, 2011
Author: Ashim Kumar Roy
Bench: J.N. Patel, Ashim Kumar Roy
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In the High Court at Calcutta
Criminal Appellate Jurisdiction
Present :
The Hon'ble Justice J.N. Patel, Chief Justice
And
The Hon'ble Justice Ashim Kumar Roy
C.R.A. No.371 of 1999
Sanjay Das & ors.
vs.
State of West Bengal
For the Appellants : Mr. P.S. Bhattacharya, Advocate
Mrs. Sukla Das Chandra, Advocate
For the State : Mr. S. G. Mukherjee, Advocate
Mr. Rudradipta Nandy, Advocate
Heard on : 2.8.2011 and 3.8.2011
Judgment on : 29.8. 2011
J.N. Patel, C.J. : This is an appeal against the judgment and order dated
7.10.1999passed by learned Additional Sessions Judge, 2nd Court, Hooghly in Sessions Trial No.59/1991 convicting the appellants for having committed offence under Sections 302/120B/498A/34 of the Indian Penal Code and sentencing them to suffer rigorous imprisonment for life for offence under Section 302 read with Section 34 of the Indian Penal Code and to pay a fine of Rs. 5,000/- each in default to suffer rigorous imprisonment one year, and sentenced to suffer Rigorous Imprisonment for three years and to pay a fine of Rs. 5,000/- 2 in default Rigorous Imprisonment for six months each, for having committed offence punishable under Section 498A of the Indian Penal Code and no separate sentence was passed for having committed offence under Section 120B of the Indian Penal Code. It was further ordered that substantive sentences would run concurrently. The co-accused Sukumar Santra was acquitted of all the charges.
The prosecution case is that the appellant-accused no.1 got married to Santi Das on the intervention of the villagers, as Santi became pregnant due to physical relationship between them prior to marriage. On getting married she went to reside at her in-law's place but she was made to stay in a room in the garden of her in-law's house and was treated with cruelty. She was not given proper food and clothing and subjected to both physical and mental torture.
Three months after the marriage Santi gave birth to twin daughters and they were named as Dolon and Champa. In spite of having delivered children she was compelled to stay in the said room of thatched roof within banana grove commonly known as 'Kalabagan' in unhygienic condition. The appellants- accused, Sanjay Das used to stay with his family in pucca room and Santi was not allowed to cook her own meals and was required to daily collect her meal from her mother-in-law, Smt. Pushpa Das.
According to the prosecution, on the fateful day i.e. 30.1.1989 in the evening Santi went to take her meal from her mother-in-law, Smt. Pushpa Das and on her return she found her husband standing in the courtyard and her children who were seven month old were not well. One of them was lying still and the other one was having convulsions.
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On seeing this, her husband left the place on the pretext of getting rickshaw to take them to hospital and did not return. The other members of the family the appellants-accused Bishwajit Das and Smt. Pushpa Das also left the place.
On seeing both her children were dead her brother Sankar Santra (PW 2) reported the matter to the police. On receipt of information Sub-Inspector, M.C. Mallick (PW 13) visited the place of occurrence and prepared two inquest reports Exhibits 1 and 2 on registering Polba P.S. U.D. Case No.2/89 dated 30.1.1989. He then despatched the deadbodies for post mortem examination to Chinsurah Sadar Hospital. After 10 days of the incident, a complaint in writing, came to be lodged with the Officer-in-Charge, Polba Police Station, Polba, Hooghly by Santi Das, P.W.1 which was written by Shri Shib Shakti Koley. The complaint was received at police station on 10.2.1989 at 11.30 hours. On the basis of the complaint, police registered F.I.R. Polba Police Station Crime No.14/89 dated 10.2.1989 under Sections 498A/302/120B of the Indian Penal Code and started investigation, recorded the statements of the witnesses and caused arrest of the of the appellants-accused and filed chargesheet against them for having committed murder of the twin children namely Dolon and Champa.
The case was committed to the court of sessions the appellants-accused alongwith Sukumar Santra (paternal uncle of Sanjoy) were charged for having treated Santi with cruelty and thereby have committed offence under Section 498A of the Indian Penal Code and they were further charged for having committed murder by poisoning the two female children of Santi, in furtherance 4 of their common intention. They were also charged for having committed the said act of murder by poisoning in pursuance of conspiracy and, thereby committed offence under Section 120B of the Indian Penal Code.
The appellants-accused pleaded not guilty and claimed to be tried. The prosecution examined in all 13 witnesses in support of their case. On conclusion of the trial the learned trial Court found that the prosecution has proved that the appellants-accused have committed offence under Section 498A/302 of the Indian Penal Code read with Section 34 of the Indian Penal Code and Section 120B of the Indian Penal Code and convicted and sentenced the appellants-accused.
Learned counsel appearing for the appellants-accused submitted that the prosecution case is based on circumstantial evidence. It is submitted that the First Information Report in the case came to be lodged after a period of 10 days which goes to show that the complainant along with her relatives and some neighbours after much deliberation falsely implicated the appellants-accused. That the prosecution has not been able to explain the substantial delay of 10 days in lodging the First Information Report particularly, when P.W.2, the brother of Santi had given information to the police on 30.1.1989 pursuant to which a case of unnatural death was registered as Polba P.S. U.D. Case No.2/89 but the police could not reach at any conclusion till the First Information Report came to be lodged by Santi, P.W.1 on 10.2.1989.
It is further submitted that the defacto complainant Santi and her relatives did not lodge any complaint of alleged ill-treatment meted out to Santi and falsely 5 implicated the appellants-accused for having committed offence under Section 498A of the Indian Penal Code out of animosity which is based on interested statement to suit their convenience.
It is submitted that the evidence of prosecution witnesses is full of exaggeration, discrepancies which does not inspire confidence and is unreliable.
It is submitted that at the time two inquest reports came to be prepared in the presence of P.W.1, Santi Das and most of the witnesses who have been examined by prosecution are signatories to the inquest reports but none of them expressed even suspicion against the appellants-accused Sanjay Das and no report came to be made against the appellants-accused for having treated Santi with cruelty or committed murder of two children by poisoning pursuant to a conspiracy. Therefore, it would be most unsafe to convict the appellants-accused on the basis of the evidence available on record.
It is submitted that the appellants-accused have taken a specific defence that there is civil and criminal litigations pending between appellants-accused and P.W.2 i.e. brother of Santi in different Courts at Hooghly which is not disputed by the witnesses and, therefore, the possibility of falsely implicating the appellants-accused by taking opportunity of the unfortunate incident cannot be ruled out.
It is submitted that finding of pesticide like endosulfan is very common in villages and the seizure of tin container of endosulfan does not prove the prosecution case as appellant-accused no.1 own mango grove and banana grove and availability of such insecticide/articles is quite usual and natural. 6
It is submitted that the prosecution had not led any evidence to show why the appellant-accused Sanjay would kill his children and for want of motive the prosecution has miserably failed to prove their case against the appellants- accused and, therefore, the appellants-accused deserve to be acquitted.
On the other hand, the learned counsel appearing for the State submitted that this is a case based on circumstantial evidence. The prosecution has proved their case that the children died due to administering of poison.
It is submitted that at the time of the incident when the mother of the children Santi had gone to collect food from her mother-in-law in the evening at about 6.00- 6.30 p.m. the appellants-accused took this opportunity and administered poison to the two children of Santi who were just seven month old which resulted in their death.
It is submitted that Santi on return to her room found the door ajar and saw appellant-accused Sanjay standing in the courtyard and on Santi questioning him what was happening to her children, the appellant-accused Sanjay left the place of occurrence on the pretext that he will bring a rickshaw and did not return. So also the other co-accused also left the place. This conduct of the appellants-accused clearly goes to show their culpability and, therefore, there is no merit in the appeal.
It is submitted that the trial Court after taking into consideration the evidence as a whole came to a conclusion that the prosecution proved its case. It has also considered the delay in filing the First Information Report which according to the trial Court was not fatal as it was sufficiently explained by Santi, 7 P.W.1 who was in a state of shock and could not gather her senses to lodge a report against her husband and relatives. It is only when she gathered her senses and courage, reported the matter to the police. It is submitted that there is no reason why Santi would falsely implicate her husband and relatives.
There is no dispute over the fact that the two children died a homicidal death due to poisoning. The deadbodies of Dolon Das and Champa Das who were aged about seven months were sent to Chinsurah Sadar Hospital on 31.1.1989. Dr. P.G. Bhattacharya, P.W.11 conducted the post-mortem on 31.1.1989 on the deadbody of Dolon. In his deposition he stated that he found no external or internal injury on the body. Stomach contents violet colour fluid about 25 grams with significant smell like that of poison.
He opined that the death was due to the effect of poison stated above ante mortem and in all possible homicidal in nature which will be confirmed by chemical examiner's report of the viscera preserved. On 8.11.1990 after getting report no.4326 dated 26.7.1990 and Tox No.1440/1989 from F.S.L. of deceased Dolon Das, it is found that endosulfan has been detected in the viscera said to be of Dolon Das. He also stated that his opinion given in the postmortem report is the final opinion. The post mortem report is marked Exbt.6. Subsequent report by this witness is marked Exbt.7 and F.S.L. report is marked Exbt.8.
He also held post-mortem examination over the deadbody of Champa Das, Hindu female aged about 7 months of village Korola, Police Station-Polba, District Hooghly and the same was brought and identified by constable no.2722 Ramoni 8 Ranjan Kar in connection with Polba Police Station U.D. Case nO.2/89 dated 30.1.1989.
On examination he found no external or internal injury on the body. Stomach contained slight violate colour fluid about 10 grams with significant pungent smell like that of poison. Viscera was preserved.
In his opinion the death was due to the effect of intake of poison stated above ante mortem and in all possible homicidal in nature which will be confirmed by C.E.'s report on analysis of the viscera preserved. On getting viscera report from F.S.L. in connection with F.S.L. report no.5255 dated 5.9.90 and Tox No.1439/89. It is learnt that endosulfan has been detected in the viscera said to be of Champa Das. So, his previous opinion stated in the P.M. report is final opinion. P.M report is marked Exbt.9. Subsequent report by this witness is marked Exbt.10 and F.S.L. report is marked Exbt.11. Endosulfan is strong insecticide. It is quite possible to cause death if endosulfan is administered.
Now let us examine whether the prosecution has been able to establish whether the appellants-accused administered poison to his children. The only persons who were with the children Dolon and Champa at the time of the incident are Santi Das, P.W.1 and her husband Sanjay Das. Santi was admittedly residing with the children in the thatched house of Sanjay Das within Karala Police Station, Polba.
In her evidence, Santi has given the history of her marriage with appellant- accused Sanjay which according to her was a result of love affair with Sanjay and as they have co-habited before marriage she got pregnant before the marriage 9 was solemnized on 29th Baishak, 1395 B.S. according to Hindu rites. According to her, after the marriage she came to her in-law's house but she was compelled to stay in the garden and that she was subjected to ill-treatment and she was not given proper food and clothings. She was not allowed to visit anybody's house and whenever she used to visit her father's house they abused her on her return. She was normally staying half-starved. The meal was cooked by her mother-in-law and she was asked to collect it but the quantity was never sufficient. Three months after solemnization of marriage she delivered two daughters. During her delivery also she was not taken to hospital by her husband and after the birth of children her husband used to stay with his mother in the house while she was made to stay in the garden along with her children. After birth of the children the accused persons treated them with cruelty. They were not given proper food and even clothings. In her evidence before the Court she specifically stated that her twin daughters died after they were administered poison on 30.1.1989. The poison was administered at 6.00- 6.30 p.m. at that time when she went to collect her meal from her mother-in-law where she was made to wait for long time after she was given food she was again called by her mother-in-law and after sometime she gave a piece of fried fish. Ultimately, when she returned to her room in the garden she saw accused Sanjay and Bishwajit standing there. Whereas in the First Information Report lodged by her she has stated "in the evening on 30.1.1989 taking the opportunity of my absence, my husband and other members of the family conspired to poison my two baby daughters. When the occurrence took place, I reached in front of the 10 door of the room of my children and found one of my daughters lying still and another groaning. When I reached the room my husband was standing there in front of my two children. I said why are all these happening to my children? My husband left saying that he was going to call a doctor. The Children smelt poison from their mouth. Immediately after that I found my second child moan and she became silent in the very next moment. Then I started crying loudly. People from neighbourhood came. My husband Sanjay Das, uncle-in-law(elder brother of father-in-law), brother-in-law (husband's elder brother) and mother-in-law left the house and did not come back any more. Everyone of the village knows the aforesaid fact".
On comparing her evidence before the Court with the FIR one can see that the FIR do not corroborate her as there is no mention of the fact of having gone to take food from her mother-in-law in the FIR. Further the presence of Bishwajit is not stated in the FIR. It is pointed out by learned counsel appearing for the State that though the fact of having gone to take food from her mother-in-law is not mentioned in the FIR it does find place in the inquest report and, therefore, this cannot be considered as an omission or improvement particularly when the witness is not confronted with the FIR.
In the cross-examination, she has been confronted with the fact that in order to save the children the appellant-accused, Sanjay has taken them to the hospital in a rickshaw and while the children were taken by Sanjay in a rickshaw one of them expired but she has denied the aforesaid suggestion. Similarly, omission as regards the presence of the Bishwajit along with Sanjay standing in 11 front of the room and further over the delaying of her return by the mother-in-law on the pretext of giving a piece of fried fish, has been pointed out which she has denied.
If one considers her evidence before the Court in totality it is clear that nobody actually saw anyone administering poison to the children. She has categorically stated that her children died after they were administered poison on 30.1.1989 and that it was administered at 6.00-6.30 p.m. At that time she went to receive food from her mother-in-law and she suspects that was Sanjay, her husband who has administered poison and that this was pursuant to the conspiracy to kill her children and this is by way of inference drawn by her on the basis that her mother-in-law detained her on the pretext of giving food and further after some delay she was served with a fish so as to facilitate her husband, Sanjay to administer poison to the two children because she came back and found her husband standing in the courtyard and the children suffering from effects of poison. It will be most unsafe to draw such an inference for the simple reason that the post-mortem examination discloses that the poison was administered to the children along with fluid in the stomach. Stomach contents of Dolon was violet colour fluid about 25 grams with significant smell like that of poison and that of Champa it contained slight violate colour fluid about 10 grams with significant pungent smell like that of poison which is indicative of the fact that for administering poison to the children a fluid came to be prepared which came to be given to them and it will require some means like utensils to prepare and administer it to the children but nothing was noticed at 12 the place of occurrence by Santi Das except that she found her husband standing in the courtyard. Santi has not stated anything in respect of the role played by Bishwajit but only marks his presence along with her husband and whatever she deposed over the conduct of her husband was her husband left seeing that he was going to call the doctor which is very natural. It is not the prosecution case that the appellant-accused Sanjay had any motive for killing his children. On the other hand, the possibility of administering poison to the children by any other person like Santi cannot be ruled out. For the reason that if one goes through her evidence it clearly indicates that she was not happy with her husband as she was not treated well and made to live in an insanitary place. In her evidence she has been very empathetic that it was her husband Sanjay Das who killed her two girl child by poisoning. At the time she went to lodge the report i.e. after 10 days she has realized that the occurrence was a conspiracy done by the people of the household. This reflects her mental state and hatred towards her husband and family members. Therefore, one can seen that she is the sole witness on the point of conspiracy and the incident of administering poison to the children and in our view it will be most unsafe to rely on her evidence on this aspect as whatever she has deposed is a result of a grave suspicion.
We find that the prosecution has examined her brother, Sri Sankar Santra, P.W.2, mother, Monorama Santra, P.W.3 and other villagers. They all have given consistent evidence and corroborate each other over the circumstance and manner under which the appellant-accused Sanjay and Santi got married and 13 that she was subjected to cruelty at her in-laws' place and that after she delivered twin daughters her husband and in-laws did not care for her and she was not given proper food and clothes and always subjected to abuse and ill- treatment by the accused persons and that the children were killed by administering poison and P.W.1 Santi Das believes that they were poisoned by her husband because Sanjay and Bishwajit were standing in front of her room when the children were restless and that Sanjay and Bishwajit escaped from the place.
It has come in their evidence that on getting information from paramen about the occurrence they came over to the place of occurrence and found that both children were lying dead. The information about the incident was given by Sankar Santra, P.W.2, brother of Santi Das, P.W.1 that is how the police came to the place of occurrence and prepared the inquest report signed by P.W.s 1 and 2 and others who are paramen. P.W.2, Sankar Santra, has not disputed the fact that civil litigation is pending between himself and accused persons which indicates that their relations were not cordial and Sankar Santra and Monorama Santra, P.W.3 were on inimical terms with appellant-accused, Sanjay and his family. These witnesses have deposed about illtreatment meted out to Santi Das, P.W.1 by her husband and her in-laws having come to know from Santi herself.
Manorama Santra (P.W.3), mother of Santi claims that the children died due to administering of poison and after hearing the cries of Santi she went to the house of her daughter and found Santi crying and one of the children was already dead and the second one was having convulsion. She found mother-in- 14 law, her daughter, her son-in-law and brother of son-in-law were present but immediately thereafter they left the place of occurrence with a plea that they went to call a rickshaw but they did not return and there Santi told her Sanjay administered poison to her children. Taking into consideration that Santi disclosed to her mother on the very day of the incident when she reached the place of occurrence that the appellant-accused Sanjay had administered poison to the children there is no reason why Monorama, P.W.3 could not have disclose this important fact to her son and all the paramen who had assembled there and if that was so this fact would come to the notice of the police who had immediately gone to the place of occurrence on P.W.2 informing them and could have very well been reflected in the statement of the witnesses recorded by P.W.11, the officer who had gone to the place of occurrence and prepared the inquest report. However, no such thing happened otherwise there is no reason why the police would not have immediately registered a case of murder against the appellant-accused Sanjay and other family members rather than waiting for a period of 10 days till the First Information Report was lodged by Santi Das.
We, therefore, find that the nature of evidence as regards complicity of the appellants-accused does not inspire confidence. Suspicion and consideration of probability however reasonable cannot be the basis of conviction. In this case, the very delay of 10 days in giving an F.I.R. itself creates doubt in one's mind.
In Ramdas & ors. vs. State of Maharashtra reported in (2007) 1 SCC546 the Supreme Court observed as follows :
"24. Counsel for the State submitted that the delay in lodging the first information report in such cases is immaterial. The proposition is too broadly 15 stated to merit acceptance. It is no doubt true that mere delay in lodging the first information report is not necessarily fatal to the case of the prosecution. However, the fact that the report was lodged belatedly is a relevant fact of which the court must take notice. This fact has to be considered in the light of other facts and circumstances of the case, and in a given case the court may be satisfied that the delay in lodging the report has been sufficiently consider whether the delay in lodging the report adversely affects the case of the prosecution. That is a matter of appreciation of evidence. There may be cases where there is direct evidence to explain the delay. Even in the absence of direct explanation for the daly. There are cases where much time is consumed in taking the injured to the hospital for medical aid and, therefore, the witnesses find no time to lodge the report promptly. There may also be cases where on account of fear and threats, witnesses may avoid going to the police station immediately. The time of occurrence, the distance to the police station, mode of conveyance available, are all factors which have a bearing on the question of delay in lodging of the report. It is also possible to conceive of cases where the victim and the members of his or her family belong to such a strata of society that they may not even be aware of their right to report the matter to the police and seek legal action, nor was any such advice available to them. In the case of sexual offences there is another consideration which may weigh in the mind of the court i.e. the initial hesitation of the victim to report the matter to the police which may affect her family life and family's reputation. Very often in such cases only after considerable persuasion the prosecutrix may be persuaded to disclose the true facts. There are also cases where the victim may choose to suffer the ignominy rather than to disclose the true facts which may cast a stigma on her for the rest of her life. These are cases where the initial hesitation of the prosecutrix to disclose the true facts may provide a good explanation for the delay in lodging the report. In the ultimate analysis, what is the effect of delay in lodging the report with the police is a matter of appreciation of evidence, and the court must consider the delay in the background of the of the facts and circumstances of each case. Different cases have different facts and it is the totality of evidence and the impact that it has on the mind of the court that is important. No straitjacket formula can be evolved in such matters, and each case must rest on its own facts. It is settled law that however similar the circumstances, fact in one case cannot be used as a precedent to determine the conclusion on the facts in another. (See Pandurang v. State of Hyderabad) Thus mere delay in lodging of the report may not by itself be fatal to the case of the prosecution, but the delay has to be considered in the background of the facts and circumstances in each case and is a matter of appreciation of evidence by the Court of fact."
In State of A.P. vs. M. Madhusudhan Rao reported in (2008) 15 SCC 582 wherein it was observed as follows :
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"Time and again, the object and importance of prompt lodging of the first information report has been highlighted. Delay in lodging the first information report, more often than not, results in embellishment and exaggeration, which is a creature of an afterthought. A delayed report not only gets bereft of the advantage of spontaneity, the danger of the introduction of a coloured version, an exaggerated account of the incident or a concocted story as a result of deliberations and consultations, also creeps casting a serious doubt on its veracity. Therefore, it is essential that the delay in lodging the report should be satisfactorily explained."
In the present case, P.W.1 Santi Das has stated about the lodging of the first information report that while lodging the first information report she was accompanied by Sri Shib Shakti Koley. The first information report was written by Shib Shakti Koley as per dictation of Santi but did not offer any explanation for the delay. The prosecution has examined Shib Shakti Koley, P.W.6 to explain the delay. This witness has deposed that Santi was mentally misbalanced after occurrence of the incident and he was told by Santi to write the first information report. He accompanied by Santi went to Polba P.S. and he wrote first information report according to the instruction of Santi and it bears his signature (Exbt.3). This witness was never interrogated by the police and, therefore, except for stating that Santi was mentally misbalance due to the incident, there is no plausible explanation given by the witness and the other witnesses also do not say anything about her mental and physical condition so as to explain the delay of 10 days in lodging the report.
Investigating officer S.I. M.C. Mallick, P.W.13 only speaks about the fact that on 10.2.89 he visited Korola which is the place of occurrence as he was endorsed to investigate Polba P.S. case No.14 dated 10.2.89. He searched for accused Sanjay, but he was not available. He recovered and seized a tin 17 container from the verandah of accused Sanjay by preparing seizure list (marked Exbt. 4). He examined available witnesses and recorded their statements. He collected F.I.R. in connection with U.D. Case. On 12.2.89 he arrested Puspa and Sukumar Santra. There is nothing in his evidence to show before the Court that the appellants-accused were absconding since the day of the incident. In his cross-examination, he stated that he cannot say whereabouts of original information given at thana on 30.1.89 and recorded in connection with Polba P.S. U.D. Case No.2/89. The F.I.R. in connection with U.D. case was received at village Korola, but he cannot say in which particular place he received. He does not recollect the purpose of his visit on that day and on that time. There is no mention in Exbt.13 who gave written information to him. It is correct that on that day when he received the F.I.R. in connection with U.D. Case he visited the place of occurrence. About the first information report lodged by Santi Das he does not make any reference at all. Therefore, the evidence on record reveals that the prosecution has not offered any explanation as to why there was such a delay in lodging of the first information report. The evidence of the investigating officer rather goes to show that on the first information report being lodged he arrested the accused persons and conducted routine investigation and filed chargesheet against them. It only goes to show that right from the time the police were informed about the death of the two children of Santi they were not able to find out who was responsible for administering poison to the children which caused their death for 10 days till the report was lodged by Santi in writing. They merely 18 completed the formalities of arresting the appellants-accused without making an effort to collect evidence against them.
To sum up we find that the prosecution has failed to establish their case against the appellants-accused beyond reasonable doubt and therefore in absence of any cogent, consistent and reliable evidence it was not proper for the trial Court to have arrived at a conclusion that the appellants-accused are guilty of having committed murder of the two children by administering poison. The trial Court merely placed reliance of the evidence of the witnesses and particularly that of Santi Das, P.W.1 which was based on grave suspicion. Santi Das had nurtured illwill against her husband and in-laws for the period of 10 days which culminated into the first information report accusing them of having committed murder.
We, therefore, quash and set aside the conviction and sentence. The appellant no.1 Sanjay Das be forthwith released from custody unless required in any other case. Bail Bonds of other appellants who are on bail stand cancelled.
The appeal is, therefore, allowed.
I agree. (J.N. Patel, C.J.)
(Ashim Kumar Roy, J.)