Delhi District Court
State vs . Chanchal Paul on 22 July, 2020
IN THE COURT OF SH AJAY GUPTA ADDL. SESSION JUDGE2
(EAST), KARKARDOOMA COURTS, DELHI
SC No.1362/16
FIR No.307/14
U/s 302 IPC
PS Geeta Colony
State Vs. Chanchal Paul
S/o Nimai Paul
R/o H.No.E42, 3rd Floor,
Rani Garden, Shastri Nagar, Delhi31
Date of institution 12.08.2014
Arguments heard 07.07.2020
Date of order 22.07.2020
JUDGMENT
PROSECUTION CASE:
1. Brief facts as per prosecution case are as under:
(a) that on 14.05.14, at about 12.30 pm, the duty officer HC Katar Singh, through Ct. Virender, produced the DD no.10A, one handwritten letter in Bangla language and accused Chanchal Paul to the IO/Insp. Arun Chauhan. In the presence of the SHO, IO made inquiries from the accused regarding the matter written in Bangla language. Accused Chanchal Paul explained the matter written in the said letter in Hindi. Accused stated that he is residing at E42, third floor, Rani Garden, Shastri Nagar, Delhi alongwith his wife Suchitra Paul. He is having an eight months daughter Nikita. He does work of jewelry. At the same address, Ram Paul, who happens to be his brother in distant relation, also living with him and learning the work. Today at about 8 am, he FIR No.307/14 State vs Chanchal Paul U/s 302 IPC 1 of 49 took his daughter inside the house to feed her milk and at that time his wife was sleeping. Thereafter, he took his daughter to the room situated outside and suddenly, he pressed the neck of his daughter and later on, he came to know that she has died. Thereafter, he became worried. At that time, his said brother and one worker were sleeping in the third number room. He told everything to his wife. He wife screamed and started crying due to which his brother and the worker got awakened. Thereafter, Ram Paul, Srijan Paul, his brother inlaw Raju and his wife went to Chacha Nehru Hospital and he has come to police station. He stated he has done a mistake. From the contents of the said letter, the offences u/s 302 IPC appeared to have taken place. At about 1.15 pm, IO Insp. Arun Chauhan, converted the said letter into a Tehrir and he himself handed over the same to the Duty Officer and conducted the investigation on the directions of senior officers.
(b) During investigation, the said letter was kept in a polythene cover and taken into possession. Thereafter, IO, alongwith Ct. Virender and accused went to his said tenanted house. The said house belongs to Smt. Devki Bhatt W/o Pradeep Bhatt and it is a four storey house. The landlord resides on the first floor and accused with his family and his other persons lives of the third floor. The tenanted portion of accused consists three rooms, one kitchen, one latrine and one bathroom. At the instance of accused the pointing out memo and a site plan of the spot was prepared. In the site plan, the room which is situated inside and where wife of accused was sleeping has been FIR No.307/14 State vs Chanchal Paul U/s 302 IPC 2 of 49 given Mark A. The room which is situated outside and where the accused had killed his daughter, has been mentioned as Mark B in the said site plan. The accused handed over a Baingani Colour diary which was kept on a table. The said table was kept in the room situated outside. The accused had torn a page from the said diary to write the said repenting letter and thus, it was taken into possession and kept in a paper envelope and then it was sealed with the seal of GC03 P.S. GEETA COLONY, EAST DISTT and thereafter, same was seized vide a seizure memo. During this process, ASI, Rajender Singh Rana alongwith Smt. Suchitra Paul @ Beauty Paul (the wife of accused) and her brother Raju Paul, her brotherinlaw Ram Paul and workers Subroto Paul and Hemant came to the said tenanted premises.
(c) During inquiries, they stated that today (14.05.14), at about 11.47am, vide DD No.28B, complainant Smt. Suchitra Paul alongwith her eight months daughter and her brother Raju Paul and her brotherinlaw Ram Paul, had come to PS and informed that her husband has killed her daughter who is unconscious. Then, they alongwith Ct. Raj Bala, complainant and other persons who accompanied the complainant went to SDN hospital where doctor concerned declared the child brought on the MLC. They deposited the dead body of the deceased child with the Subzi Mandi mortuary. During this inquiry, on the instructions of the IO, Ct. Virender brought copy of FIR and original Tehrir from the Police Station. IO recorded the statements of accused Chanchal Paul, his wife Suchitra Paul, brother Ram Paul, brotherin FIR No.307/14 State vs Chanchal Paul U/s 302 IPC 3 of 49 law Raju Paul and workers Subroto Paul and Hemant. These persons stated that accused has killed his daughter by strangulating her as he was under depression due to financial problems. Copy of rent agreement of accused was seized from the landlord and as per rent agreement, the accused was living in the said premises from 12.03.13 on Rs7150/ pm rent. In this regard statement of landlady was also recorded. The accused was arrested and information about his arrest was given to his wife on the spot.
(d) Accused did not give any satisfactory reply regarding murder of his daughter. Accused was produced before the court on 15.05.14 and his two days PC remand was taken. With the permission of Ld. MM, specimen hand writing of accused were taken and same were taken into possession vide a seizure memo. On the same day, the postmortem of the deceased child was got conducted. After postmortem, the dead body was handed over to the uncles of deceased. The clothes of the child handed over by the doctor were also seized. During interrogation accused made a disclosure that he killed his daughter due to financial problem. On 17.05.14, the PM report was obtained and as per report cause of death was manual strangulation. Specimen handwriting of accused and the repenting letter written by the accused were sent to FSL for expert opinion and pending FSL result the charge sheet was filed and during trial the FSL report was filed and as per report both the handwritings are of same person.
FIR No.307/14 State vs Chanchal Paul U/s 302 IPC 4 of 49
2. After compliance of the provisions of section 207 Cr.P.C. the charge sheet was committed to the sessions court.
3. Vide order dt. 04.09.14 charge U/s 302 IPC was framed against the accused to which he pleaded not guilty and claimed trial.
FACT IN ISSUE:
4. Point which emerged for determination in this case are: Whether on 14.05.14, at about 8 am, the accused Chanchal Paul committed murder of his daughter by strangulating her in the room situated outside of the tenanted portion. PROSECUTION EVIDENCE:
5. In order to establish accusations against the accused, the prosecution has examined 18 witnesses. For the purpose discussion, these witness have been classified into the following categories: MATERIAL WITNESSES: PW1 Smt. Suchitra Paul is the mother of deceased child and wife of accused. PW1 deposed that she got married with Chanchal Paul(accused) about two years back and they were residing at E42, Rani Garden as tenant for about one and half year. There are three rooms in the said tenanted premises which are in their possession. Her husband is doing jewelery making work and her own brother Raju Paul and Ram Paul, the brother of her husband and two boys namely Subrato Paul and Hemant Orawn were also residing with them and they were also doing jewelery making work with her husband. She stated that at the time of incident, her daughter Nikita was eight FIR No.307/14 State vs Chanchal Paul U/s 302 IPC 5 of 49 months old. She further stated that on 14.05.14, at about 8 am, she alongwith her husband were sleeping and her daughter was sleeping between them. At about, 8 am when she and her husband woke up, they found their daughter in unconscious state. They immediately took her to Chacha Nehru Hospital where doctor told them that she was no more. Police met her and after inquiries, her statement was recorded wherein she stated the above said facts. She doesn't know why her husband was arrested by the police. She stated that her daughter was not killed by her husband. She stated that she had not told the police that her husband had killed her daughter. Since, she did not support, she was declared a hostile witness and she was cross examined by Ld. Addl. P.P., and her statement u/s 161 Cr.P.C. was put to her, however, she denied substantial part of her statement. The statement u/s 161 Cr.P.C. of PW1 is Ex PW1/A. As per this statement she had stated that on 14.05.14, at about 89 am, she was present on the bed of her room where her husband informed her that he has killed their daughter Nikita by strangulating her and after hearing the same, she started crying loudly. Hearing her cry, her brother Raju Paul, brother inlaw Ram Paul and both the workers also came into their room and in their presence also, her husband told the same thing. Then she alongwith her brother and brotherinlaw took her daughter to Chacha Nehru Hospital. PW1 denied the said part of her Sec 161 Cr.P.C. statement, however, she admitted that she alongwith her brother and brotherinlaw had gone to PS and from there, she alongwith Police officials and her Jeth Rajiv Paul had gone to SDN hospital where also FIR No.307/14 State vs Chanchal Paul U/s 302 IPC 6 of 49 doctor had informed about the demise of her daughter. Thereafter, dead body of her daughter was deposited in the Subzi Mandi mortuary and they went back to their house. After admitting the said facts PW1 denied rest of her statement according to which she had further stated to the IO that thereafter police had reached at their house alongwith her husband and showed her a letter written in Bangla language and after seeing the said letter she had stated that it was in her husband's handwriting wherein he had admitted the incident of committing murder of their daughter by strangulating her neck. In her statement u/s161 Cr.P.C. she had further stated that the economic condition of her husband was not good as he was not doing well in his business. Her husband had purchased a land worth Rs.8 Lacs in the village and had paid Rs. 2 Lacs as earnest money and he could not arrange rest of the amount to purchase the said land. He also could not arrange money for the Mundan Ceremony of her daughter which was fixed for 24.05.14. She stated that she had a belief that her husband has committed murder of her daughter due to his poor economical condition and shortage of money. During her cross examination she did not admit any other facts of her previous statement. During her cross examination, photocopy of a letter written in Bangla language was showed to her and after seeing the same she stated that police had not shown her any letter written in Bangla. She also stated that she cannot say if the said letter is in the hand writing of her husband.
PW2 Ram Paul is the brother of accused. PW2 deposed that he is a permanent resident of Village Bacha Madi, Pal Para, Post Office FIR No.307/14 State vs Chanchal Paul U/s 302 IPC 7 of 49 Khas, PS Old Malda, District Malda, West Bengal. Accused is his brother in relation. Around one year back, he came to Delhi from his native place alongwith accused and he is learning jewelry making work from accused. He alongwith accused, Raju Paul, Subrato Paul, Hemant and Owran were residing at E42, 3rd Floor, Rani Garden, Shastri Nagar, Delhi. On 14.05.14, at about 89 am, he was present in his room and he came to know that his SisterinLaw (Bhabhi) and his brother/accused alongwith their daughter Nikita had gone to Chacha Nehru Hospital as Nikita was unwell. Thereafter, he as well as Subrato Paul and Hemant came to know that Nikita has died. He further stated that police neither met him nor recorded his statement and he doesn't know how Nikita died. This witness was also declared a hostile witness and was confronted to his statement Ex PW2/A. As per record, his statement u/s 161 Cr.P.C. is on the similar lines as of PW1, thus, contents of same are not being reproduced. During his cross examination conducted by Ld. Addl.P.P., PW2 denied each and every part of his previous statement.
PW6 Raju Paul is brotherinlaw of accused. He stated that he is permanent resident of Village Kaduri, Akanda, PS Gazole, Post Gazole, Dist. Malda, West Bengal. He stated that about six months prior to the incident, he had come to Delhi and started residing with his sister Suchitra Paul and brotherinlaw Chanchal Paul. He stated that his sister was having eight month old daughter Nikita. Subrato Paul, Hemant Owrawn, and Ram Paul were also residing there. On 14.05.14, at about 89 am, he was present in his room and was FIR No.307/14 State vs Chanchal Paul U/s 302 IPC 8 of 49 sleeping at that time and when he woke up, he came to know that his sister and brotherinlaw had to gone to Chacha Nehru Hospital as Nikita was not well. Later, he came to know that Nikita has died. He stated that he had identified the dead body of Nikita at Subzi Mandi Mortuary and had also received her dead body. He stated neither police met him nor recorded his statement and he doesn't know how Nikita died. This witness was also declared hostile and cross examined by Ld. Addl. P.P. and confronted with his statement Ex PW6/A and this witness also denied all the facts contained in the statement recorded u/s 161 Cr. P.C. The contents of his statement are also not being reproduced as his statement is also on the similar lines of the statements of PW1 and PW2.
PW7 Subrato Paul is the worker and as per prosecution case at the time of incident he was residing with the family of accused in the same tenanted premises. This witness deposed that he is permanent resident of Village Bachamari, Pall Para, Post Office Khas, PS Old Malda, District Malda, West Bengal. He came to Delhi about one and half year prior to the incident and was doing job of jewelry making. At the time of incident, he was residing with accused, his wife Suchitra Paul, daughter Nikita, Raju Paul, Ram Paul and Hemant Orawn. He stated that incident took place in the month of May 2014. There were three rooms in the house where they were residing. In one room, he alongwith Raju Paul, Ram Paul and Hemant Orawn were residing. In another room accused was residing with his wife and daughter and in the third room, they were doing the work of jewelery making. He was FIR No.307/14 State vs Chanchal Paul U/s 302 IPC 9 of 49 sleeping in his room with the said three persons and at about 1011 am, he received a phone call of accused from the hospital. Accused informed him that they had brought their daughter to the hospital as she was unwell. Raju Paul, the brotherinlaw of accused went to the hospital. After sometime Raju Paul and Suchitra came back to the house and he came to know that Nikita has expired. He stated that he doesn't know how she expired. Police had called him to the PS and asked about his name, parentage and address and did not make any inquiry from him regarding the fact that how Nikita has expired. This witness was also declared hostile and confronted with his statement u/s 161 Cr.P.C. Ex PW7/A, however, this witness denied all the contents of his previous statement. The statement of this witness recorded u/s 161 is also on the similar lines of other witnesses.
PW10 Hemant Auran is another worker and as per prosecution case, at the time of incident, this witness was also residing with the accused in the same tenanted premises. This witness has deposed on the similar lines of the deposition of PW2, PW6 and PW7 and did not support the prosecution case. He also stated that at the time of incident, he was residing in the above mentioned tenanted premises with the aforesaid persons. He stated that on 14.05.14, he was sleeping in his room and he woke up at about 89 am and he came to know that accused Chanchal Paul alongwith his wife had gone to hospital and other persons were present at home. After sometime, he came to know that Nikita, the daughter of accused has expired in the hospital. He also stated that neither police met him nor made any FIR No.307/14 State vs Chanchal Paul U/s 302 IPC 10 of 49 interrogation from him. This witness was also declared hostile and confronted to his statement u/s 161 Cr.P.C. but of no avail. This witness denied all the suggestions put by Ld. Addl. P.P. during his cross examination.
MEDICAL EVIDENCE: PW3 Dr Borusu Thulasi Kumari is the doctor concerned of SDN Hospital where the child Nikita was taken by the police officials for declaration of death of the child. PW3 deposed that on 14.05.14, at about 12.25 pm, baby Nikita Paul was brought by lady Ct. Rakesh for declaration of death. She examined the child and her BP and pulse were not recordable. Pupils were fully dilated and fixed. No cardiac activity was seen and there was no respiratory moment. She declared the child dead. On local examination, she found two small abrasions on the left side of neck of the body of child. After declaring the child dead she was sent for postmortem. PW3 brought on record the MLC Ex PW3/A. PW5 Dr Akash Jhanjee is the doctor concerned who had conducted the postmortem vide PM report Ex PW5/A. As per PM report the deceased suffered the following ante mortem injuries: External Injuries: (1) Contusion swelling, 1.5x1 cm over right side front of the neck. Middle portion lying 1.5 cm below and inner, to right angle of mandible, reddish in colour.
(2) Contusion swelling reddish with two crecentric abrasions measuring in an area of 3.5 x 2.7 cms, 0.9 x 0.1 cm and 0.4 x 0.1 FIR No.307/14 State vs Chanchal Paul U/s 302 IPC 11 of 49 cm over front of middle half of left side neck lying 2.5 cms below the level of left angle mandible of the face lower border level. (3) Contusion swelling reddish 1.5 x 1.5 cm over right temporal region of the heard lying 2.7 cm above the top right ear pinna level.
PW5 has opined that the child died due to manual strangulation (throttling).
Internal Examination: Head showed subscalp bruisin in the scalp layers over right side of the head under the injury no.3. skull bones were intact. Brain was congested.
Neck: showed soft and subcutaneous tissues underneath injury no.1 and 2 showed bruising in the involved neck muscles also found bruise. Neck cartilages right side superior horn of thyroid cartilage showed fracture with fractured ends reddish bruised with bruising in the adjacent musculature. Other neck cartilages were intact and trachea showed congestion of the mucosa along with blood mixed mucoid material adherent on the walls at places. PW5 deposed that the cause of death is Asphyxia as a result of manual strangulation (throttling) via injury no.1 and 2 which is sufficient to cause of death in ordinary course of nature. He also stated that all injuries were ante mortem and fresh in duration.
MEMBERS OF CRIME TEAM: PW 4 HC Sonu Kaushal is the member of crime team. He is a draftsman. On 07.06.14, on the instructions of IO, he visited the spot and took the measurements on the spot and subsequently, he prepared the scaled site plan Ex PW4/A. FORMAL WITNESS: PW8 Lady Ct. Rakesh Bala deposed that on 14/05/14, she was present in PS Geeta Colony. At about 11.47 am, Mrs. Suchitra Paul FIR No.307/14 State vs Chanchal Paul U/s 302 IPC 12 of 49 W/o Chanchal Paul R/o E42, 3rd Floor, Rani Garden, Shastri Nagar, Delhi came to PS and informed that her daughter Nikita has been beaten by her husband. In this regard DD No. 28B was lodged and she along with ASI Rajender went to SDN hospital along with Ms. Nikita who was brought to PS by her family members. The Doctor examined Ms. Nikita and declared her dead. Thereafter, dead body of Ms. Nikita was taken to Sabzi Mandi Mortuary and she was deputed to supervise the dead body in the mortuary. In the morning of 15.05.14, the family members of Nikita came to the mortuary and after postmortem, the dead body of Nikita was handed over to her maternal uncle vide handing over memo Ex.PW 6/B. Ct. Sachin had handed over one parcel sealed with the seal of CMO IC AAAGH Sabzi Mandi Mortuary Delhi along with one sample seal to the IO which were taken into possession vide a seizure memo. Blood sample contained in gauze piece in an envelope sealed with the seal of CMO IC AAAGH Sabzi Mandi Mortuary Delhi along with sample seal were also handed over to the IO which were also taken into possession by preparing a seizure memo.
PW9 Ms. Devki is the landlady. She deposed that she has been residing at E42, Rani Garden, Shastri Nagar, Delhis along with her family members. The said house is constructed upto fourth floor. She has been residing at the first floor and the rest of the three floors of the said house have been given on rent. The third floor of the said house was given on rent to accused Chanchal on 12/03/13 and he was residing in the said rented three rooms at third floor along with his FIR No.307/14 State vs Chanchal Paul U/s 302 IPC 13 of 49 wife, brother in law, cousin and two other boys and he was working as a jewelery maker. He was having a daughter namely Nikita, aged about 8 months and he was regularly paying monthly rent of Rs.7150/ and due to the death of his daughter he could not pay the rent for about one or two months. She came to know about the death of his daughter later on. She had given the copy of rent agreement Mark PW9/A to the police officers.
PW11 Ct. Deep Chand is the police official who on 26.05.14, had deposited the exhibits regarding DNA analysis. He deposed that document section had refused to accept the documents as they were not having any expert of Bengali Language and informed PW11 that these documents should be sent to CFSL, Kolkata.
PW12 HC Sudhir is the police official who on 14.05.14, at about 2 pm, had departed from the police station and delivered the copy of the FIR at the residence of Ld. MM, Joint CP, DCP East and ACP.
PW13 HC Kiranpal is the MHCM concerned. PW13 deposed that on 14.05.2014, Insp. Arun Chauhan had deposited one pullanda sealed with the seal of GC3 PS Geeta Colony East District alongwith jama talashi articles of accused Chanchal Paul which were deposited by him and in this regard an entry was made at sr.no. 216 in the register no.19, copy of which is Ex.13/A. He further deposed that on 15.05.2014, ASI Rajender Singh deposited two parcels sealed with the seal of Subzi Mandi Mortuary Delhi CMO IC AAAGH alongwith two sample seals which were deposited vide entry at sr.no.218 FIR No.307/14 State vs Chanchal Paul U/s 302 IPC 14 of 49 Ex.PW13/B (OSR). On 26.05.2014, on the direction of IO, he handed over two sealed parcels sealed with the seal of Subzi Mandi Mortuary Delhi CMO IC AAAGH alongwith two sample seals to Ct. Deep Chand for depositing the same at FSL Rohini vide RC no.60/21/14 Ex.PW13/C and copy of receipt is Ex.PW13/C1. On 14.06.2014, on the direction of IO, he handed over one envelope sealed with seal of GC3 PS Geeta Colony Delhi East District and one hand written letter in Bangla Language kept in a plastic envelope and four papers of specimen handwriting Mark S1 to S4 to Ct. Virender for depositing the same at FSL Kolkatta vide RC no.80/21/14 who after depositing the same handed over the receipt in this regard. The copy of RC is Ex.PW13/D and copy of receipt is Ex.PW13/D1. All these documents were taken on record.
PW14 L/Ct. Suman was posted as DD writer in the PS Geeta Colony on the relevant date. She deposed that on 14.05.14, at about 11.47 hours, she received an information from one lady that her daughter Nikita had been killed by her husband. She noted down the said information vide DD no.28B Ex PW14/A and produced the said lady to ASI Rajender Singh. She further deposed that dead body of the child was sent to SDN hospital.
PW16 ASI Katar Singh is the duty officer. He deposed that on 14.05.14, Insp. Arun Chauhan handed over a rukka on the basis of which he recorded the FIR Ex PW16/A. After registration of FIR its copy was sent to Insp. Arun Chauhan through Ct. Virender vide DD FIR No.307/14 State vs Chanchal Paul U/s 302 IPC 15 of 49 no.10A and 11A Ex PW16/C and Ex PW16/D. PW16 also got delivered the copies of FIR to the senior officer through Ct. Sudhir.
MEMBERS OF INVESTIGATING TEAM: PW15 Ct. Birender remained with the IO during investigation of this case. He deposed that on 14.05.14, at about 12.30 pm, duty officer gave him an application in Bangla language alongwith accused and directed to produce him before the SHO, however SHO was not present at that time, thus, he produced the accused before Insp. Arun Chauhan. Insp. Arun Chauhan interrogated the accused who revealed that he has committed murder of his eight month old daughter by strangulating her neck. The said application was kept in polythene. Then they went to the 3rd floor, of H.No.E42, Rani Garden, Delhi. There accused pointed out the room near the kitchen where he strangulated his daughter. IO prepared the site plan of the spot. Accused got recovered a note book from the table lying in room stating that he had taken out a page from the said note book to write about the death of his daughter in Bangla language. The note book was seized vide seizure memo Ex PW15/A. He was sent to PS to bring the copy of FIR and accordingly, he went to PS and brought the copy of FIR and rukka and handed over the same to IO. He further deposed that accused was brought to PS and after his medical examination at SDN hospital, information about his arrest was given to his wife. Ld. Addl. P.P. cross examined this witness as he partly resiled from his previous statement. His entire cross examination is in FIR No.307/14 State vs Chanchal Paul U/s 302 IPC 16 of 49 the form of suggestion and this witness admitted all the suggestions put by Ld. Addl. P.P. He admitted that after interrogation, IO had produced the accused to the SHO. Insp. Arun Chauhan got the FIR registered and took up the investigation. The hand written letter of the accused was kept in a polythene and seized. Pointing out memo Ex PW15/C was prepared on the pointing out of accused. ASI Rajender Singh, Suchitra (wife of accused), his brotherinlaw Raju Paul and his distant relative Ram Paul and workers Subrato Paul and Hemant also came to the spot. There, ASI Rajender Singh informed the IO that he has got the dead body preserved at Subzi Mandi Mortuary. He admitted that the statement of landlady Devki Bhatt was recorded after interrogation. He admitted that he again joined investigation on 15.05.14 and accused was produced before the court where with the permission of court four sets of sample hand writing were obtained from the accused in Bangla language and same were seized vide seizure memo Ex.PW15/F. The accused was taken on two days police remand. He admitted that during counseling accused disclosed that he has committed murder of his daughter due to financial constraints vide his disclosure statement Ex.PW15/G. This witness identified the purple colour diary, the letter written by the accused and four sets of specimen hand writing of accused and same were brought on record as Ex.P1 to P6.
PW17 Insp. Arun Chauhan is the IO of the case. IO deposed that on 14.05.2014, he was posted at PS Geeta Colony as Inspector and on that day, DD no.10A/Ex.PW16/C was lodged which was marked to FIR No.307/14 State vs Chanchal Paul U/s 302 IPC 17 of 49 him for necessary action. Ct. Birender produced accused Chanchal Paul alongwith one letter Ex.P2 written in Bengali Language Ex.P2 and it was taken into possession vide seizure memo Ex.PW15/B. He produced the accused before the SHO concerned and in the presence of SHO, the accused was asked to read the contents of the said letter which he read over and it was got translated into Hindi Language by the accused which was written by him on his dictation and the accused had told that he had murdered his eight month old daughter namely Nikita at his residence by way strangulation. He recorded the translation of the said letter dictated by accused under his endorsement Ex.PW17/A and prepared a tehrir produced the same before the duty officer who got the case registered. Thereafter, he alongwith the accused and Ct. Virender reached the house of accused i.e. E42, 3rd floor, Rani Garden, Delhi where at his instance, he prepared site plan Ex.PW17/B. The landlady Ms. Devki Devi came there from first floor of the same building and she told that the accused was residing there on rent with effect from dt.12.03.2014 and she also produced the copy of rent agreement Mark PW9/A. She was examined and her statement was also recorded u/s 161 Cr.P.C. The accused had pointed out the place of occurrence and at his instance the pointing out memo Ex.PW15/C was prepared. The accused also got recovered one notebook from the room which was situated near the kitchen. A paper of the said notebook was used by the accused in writing the letter Ex.P2. It was taken into possession vide seizure memo Ex.PW15/A. In the meantime, ASI Rajender alongwith Ms. FIR No.307/14 State vs Chanchal Paul U/s 302 IPC 18 of 49 Suchitra Pal the wife of accused, Raju Pal, brotherinlaw of accused alongwith other family members came there. ASI Rajender told him that Ms. Suchitra had also informed in PS that her husband had committed murder of her daughter Nikita and on that information, ASI Rajender had taken her to Chacha Nehru Hospital where Nikita was declared brought dead and that the dead body of Nikita was got preserved in the mortuary and then he had come there. ASI Rajender had also produced the copy of DD no. 28B Ex.PW14/A. IO recorded the statements of relevant PWs at the spot and thereafter, he arrested the accused at around 3 pm vide his arrest memo Ex.PW15/D. Wife of accused was informed about the arrest. Thereafter his personal search was carried out vide Personal search memo Ex.PW15/E and one mobile phone make Samsung was recovered. Thereafter, they reached PS and accused was kept in the locked up. On 15.05.2014, accused was produced before the Ld. Court concerned and with the permission of the Court, specimen handwriting of the accused was taken on four sheets (four sets) which were taken into possession vide memo Ex.PW15/F. Permission for polygraph test of the accused was also sought which was refused by the accused. Accused was taken on two days PC remand. Accused was interrogated further and his Disclosure statement Ex.PW15/G was recorded. On 11.07.2014, IO collected the photocopy of birth certificate Ex PW1/B of deceased Nikita vide seizure memo Ex.PW1/C. On 07.06.2014, HC Sonu Kaushik was called from Crime Branch and they visited the spot where at the instance IO, HC Sonu Kaushik inspected the place of FIR No.307/14 State vs Chanchal Paul U/s 302 IPC 19 of 49 occurrence and taken measurements and thereafter, he had prepared the scaled site plan Ex.PW4/A. During the investigation, IO collected the postmortem report of Nikita and placed the same on record. IO recorded the statements of all the relevant PWS.
On 26.05.2014, IO directed the MHCM to hand over the exhibits to Ct. Deep Chand who deposited the same at FSL Rohini vide RC no. 60/21/14. On 14.06.2014, IO directed the MHCM, to hand over the exhibits to Ct. Virender who after receiving the same from MCHM deposited the same at CFSL Kolkatta vide RC No. 80/21/14. After completion of investigation charge sheet was prepared and filed in the court. Later on, on 08.05.2015, IO collected result from Kolkatta and filed the same in the court. The FSL result Ex PW17/C was collected from FSL Rohini on 19.09.2015 and the same was filed in the court. IO also identified the note book, the letter written by the accused and four sets of the four sets of specimen handwriting of accused.
PW18 ASI Rajender Singh Rana deposed that on 14.05.14, he was on emergency duty from 8 am to 8 pm. He deposed that complainant Beauty Paul came to PS alongwith her eight month old daughter and other relatives and she gave a statement that her husband has killed her daughter and she is unconscious. This information was recorded in DD no. 28B Ex PW14/A. He alongwith lady constable Rakesh Bala and Smt. Beauty Paul went to SDN hospital where baby Nikata was declared dead vide MLC Ex 3/A. The dead body was preserved in FIR No.307/14 State vs Chanchal Paul U/s 302 IPC 20 of 49 Subzi Mandi Mortuary. Thereafter, he alongwith W/Ct. Rakesh Bala reached the tenanted premises of accused where Insp. Arun Chauhan alongwith Ct. Virender was already present. Insp. Arun had already sent rukka to PS for registration of case through Ct. Virender and after registration of case, accused was arrested. On 15.05.14, on the direction of IO, he got the postmortem of the deceased child conducted at Subzi Mandi Mortuary. In this regard he prepared a form Ex.PW18/A. IO also came there and signed the said form. He made a brief record about the same vide Ex.PW18/B. He also prepared form 25.35 (i)(B) which is placed on record and Ex.PW18/C. he also recorded the statements of Rajiv Kumar and Raju Kumar regarding identification of dead body and after postmortem, he handed over the dead body to Raju Paul. Later on, Ct Sachin handed over him the exhibits collected from the mortuary and possession of which was taken vide seizure memo Ex.PW18/E. Thereafter, he deposited the said exhibits with MHCM.
STATEMENT OF ACCUSED:
6. After examination of aforesaid witnesses the prosecution evidence was closed and the statement of accused 313 Cr.P.C was recorded. Accused denied the allegations made against him and claimed false implication. Accused did not lead any evidence in his defence. SUBMISSIONS ADVANCED:
7. I have heard Ld. Addl. P.P as well as Ld. Defence Counsel and gone through the record of the case. Ld. Addl. PP submitted that the FIR No.307/14 State vs Chanchal Paul U/s 302 IPC 21 of 49 prosecution has proved its case against the accused beyond reasonable doubt. The accused has voluntarily made admission about his guilt through the letter Ex.P2 written in Bangala language. It is also submitted that as per FSL report, the handwriting in Ex.P2 is similar to the specimen handwriting. It is further submitted that the accused had admitted in the letter Ex.P2 that he had killed his daughter by strangulating her and this fact has been substantiated by postmortem report. It is further submitted that the child was killed within the tenanted premises. Thus, the onus was on the accused to explain the circumstances under which the child was strangulated. It is also submitted that the accused did not explain the circumstances, therefore, adverse inference should be drawn against the accused. Thus, Ld. Addl. P.P. submitted that accused may be convicted for the offence he is charged with.
8. On the other hand Ld. Defence Counsel submitted that prosecution has miserably failed to prove its case. The accused has not committed the alleged offence. It is further submitted that on 14.05.2014 when the accused and his wife woke up, they found their daughter in unconscious state and they immediately took the child to Chacha Nehru Hospital where she was declared brought dead. It is also submitted that the accused wrote the letter Ex.P2 at the instance of police. He has not committed any offence and has been falsely implicated in this case. In support of contentions, Ld. Defence Counsel cited case laws reported as 1966 Cri. L.J. 100 (Vol. 72, C.N.30) Aghnoo Nagesia vs State of Bihar and 2018 [4] JCC 2049 Neeraj FIR No.307/14 State vs Chanchal Paul U/s 302 IPC 22 of 49 Safi vs State (Delhi) and submitted that the provisions of section 106 of Indian Evidence Act are not applicable in the present case as accused was not in exclusive possession of tenanted premises and at the time of incident, besides accused, his wife and other members of his family, were also residing there. Thus, he submitted that accused may be acquitted of the charges leveled with.
LEGAL POSITION:
9. Before analyzing the evidence led by the prosecution, the legal position arises in the present case is required to be discussed before proceeding further. After considering the charge sheet and the evidence led by prosecution, it is clear that there is no direct evidence available and the present case is based on the extra judicial confessions allegedly made by the accused before his wife about which the other family members and workers of accused also came to know after this confession was made by the accused to his wife as they were allegedly present in the other room of the tenanted premises. As per prosecution case, after committing murder of his daughter, the accused had himself visited the police station and had handover a letter written in Bangla language which also contains the confession of the accused. Thus, prosecution was required to prove that the accused had made the extra judicial confession as well as the written confession. While dealing with these issues, the legal aspects regarding admissibility and reliability of extra judicial confession and the confession which are made by accused are also required to be discussed vis a vis the material brought on record by the prosecution.
FIR No.307/14 State vs Chanchal Paul U/s 302 IPC 23 of 49 Further, as per prosecution case, the accused committed murder of his daughter as he was under depression due to financial crunch and not able to arrange balance sale consideration to buy the land at his native village and also for the Mundan Ceremony of his daughter. Thus, prosecution was required to establish the aforesaid circumstances, to prove the allegations. Besides, it is admitted position of fact that the child was living with her parents in the tenanted premises where she has been killed, thus, question regarding applicability of the provisions of section 106 of Evidence Act is also required to be seen keeping in view of the facts and circumstances of the present case.
10. Thus, prosecution was required to prove that: i. accused made a written confession, ii. accused made extra judicial confession, iii. the accused was under depression due to financial crunch which became the motive/reason for the murder, iv. whether in view of section 106 Evidence Act, onus lies on the accused to explain the circumstances in which his daughter has died.
CONFESSION:
11. In the present case, the prosecution has heavily relied upon the letter Ex. P2 which was allegedly written by the accused of his own repenting on his act of killing his own daughter. There is no dispute that the said letter is in the hand writing of the accused, however, the accused has claimed that he was made to write the same by the police. As per prosecution, this letter is an admission/confession made FIR No.307/14 State vs Chanchal Paul U/s 302 IPC 24 of 49 by the accused about the offence of murder of his daughter committed by him. Before considering the aspect that whether the said letter can be taken as the confession of the accused and whether same can be relied as the same was made to the police and moreover, when same is a retracted one, there is another crucial aspect which is required to be considered prior to dealing with aforesaid legal aspects of confession that whether this letter was written by the accused of his own or at the instance of police as stated by the accused. Thus, the foundation of this letter itself has been questioned; hence, before moving further on to the aspect of the admissibility of the said confession, its voluntariness has to be seen.
12. As per prosecution at about 11.47 am, PW1 Smt. Suchitra Paul, went to PS Geeta Colony alongwith her daughter Nikita and informed that her husband (the accused) has killed her daughter and her daughter is unconscious. This information was noted down by the DD writer/PW14 vide DD no.28B and the same was assigned to PW18 ASI Rajender Singh who was on emergency duty. PW18 ASI Rajender Singh proceeded to SDN hospital with W/Ct. Rakesh Bala for having the declaration about the demise of the child. As per the contents of the DD no.28B Ex PW14/A, the mother of the deceased had come to the police station alongwith the dead body of her child and had informed that her husband has killed her daughter and despite that instead of recording her proper statement and registering a case, only the said DD was registered. There is no explanation why her statement/complaint was not registered before taking further action in FIR No.307/14 State vs Chanchal Paul U/s 302 IPC 25 of 49 this regard. Further, as per PW18, after he was assigned the said DD, he proceeded to SDN Hospital. Before proceeding to SDN Hospital, PW18 must have made some inquiries from PW1 in regard to the incident and during inquiries, PW1 must have informed that before coming to the PS, she had taken her deceased child to Chacha Nehru Hospital where doctor concerned informed her that her daughter was not alive. PW1 has stated about her visit to Chacha Nehru Hospital in her statement u/s161 Cr.P.C Ex.PW1/A and in her testimony also, though, she has given a different version about the persons who accompanied her to the Chacha Nehru Hospital. Thus, after making some inquiries, PW18 must have come to know that child has already been medically examined at Chacha Nehru Hospital and declared dead, hence, instead of visiting another hospital, PW18 ought to have visited the same hospital for this purpose and to collect the medical examination papers of the child but PW18 neither visited the said hospital nor put forth any reason for the same. The aforesaid discussed circumstances create doubt about the authenticity of the proceedings carried out initially in this case.
13. The manner in which the subsequent proceedings were undertaken about the revelation of offence and registration of FIR are also not reliable and trust worthy for several reasons. As per the prosecution case, the PW1 had already informed about the commission of offence and this fact was already part of the record of the police station. Thus, the DD writer must have immediately brought the receipt of the said information to the notice of the SHO concerned. Furthermore, PW18 FIR No.307/14 State vs Chanchal Paul U/s 302 IPC 26 of 49 was assigned the DD about the serious offence of murder and before proceeding to the hospital, he must have informed the SHO about the same and sought necessary instructions from him. Thus, it is clear that SHO must have come to know about the offence at around 12 noon itself. Thus, the further proceedings carried out by the IO and SHO Inspector Arun Chauhan about the present case, are highly doubtful. As per prosecution case, at about 12.30pm, the accused came to PS Geeta Colony and produced a letter Ex P2 written in the Bangla Language about which PW16, the duty officer concerned lodged the DD No. 10A Ex.PW16/C. It is admitted position of fact that letter Ex.P2 is in Bangla language but it is not clear from the DD 10A as to why the said letter was acknowledged by the duty officer from the accused vide said DD. Though, as a matter of routine course, before registration of the said DD, the duty officer must have made inquiries from the accused regarding the contents of said letter and accordingly, accused must have explained the same only then the said document must have been received. The duty officer is not supposed to receive any document which doesn't pertain to them or the same is irrelevant, yet duty officer did not mention even the substance of the same and it appears that he simply acknowledged the same and forwarded the same to the IO. The registration of this DD is highly doubtful as this DD has not been properly brought on record by the duty officer and this DD has only been exhibited. PW16/duty officer did not state even a single word about the same. Further, Duty Officer must be aware that the DD No.28 B has already FIR No.307/14 State vs Chanchal Paul U/s 302 IPC 27 of 49 been recorded about the same incident/offence, thus, even otherwise, he was not supposed to mark the DD of the same offence to a different police officer and even if he had done so, he was duty bound to inform about the previous DD and also that the previous DD entry has been assigned to ASI Rajender Singh who has already proceeded to SDN hospital with the dead body of the deceased child. It appears from the evidence of PW16 and PW17 that PW16 did not inform PW17 about the previous DD and the proceedings which were already being done in the same matter.
14. As per PW17, DD no.10A was assigned to him and copy of this DD, the letter Ex P2 and accused were produced before him through Ct Birender. IO seized the said letter and produced the accused before SHO where accused translated the contents of the letter in Hindi which was noted by the IO and on the basis of which IO got registered the FIR. The said proceedings are again highly surprising. As per prosecution case, accused had come to PS much after his wife had come and passed on the information about the offence. Thus, the duty officer as well as SHO must be already aware about the incident, however, it appears from the charge sheet as well as the testimony of the IO that no one was aware about the same and SHO and IO came to know about the offence when accused came to police station and produced the said letter. Furthermore, one more thing is highly astonishing in this case is that no case was registered when the wife of the accused had come to police station with the dead body of deceased child while the SHO concerned and the IO believed the FIR No.307/14 State vs Chanchal Paul U/s 302 IPC 28 of 49 version of the accused without making any inquiry from him about the dead body of the child and without visiting and verifying the version of the accused at the spot. It cannot be assumed by any stretch of imagination that if a person comes to the police station and admits that he has committed an offence, the SHO/IO concerned would proceed to register the FIR on the basis of the version of the accused and without checking the authenticity of the same. The SHO concerned or the IO would first visit the spot to see if the incident reported has actually taken place or not, especially, where the accused is making an admission about the commission of a serious offence like murder. However, very surprisingly in the instant case, simply on the saying of the accused, the IO believed him and lodged an FIR for commission of murder by him. The facts and circumstances discussed above it seems that SHO concerned was well aware about the incident and all these efforts have been put forth to project a case, that SHO/IO came to know about the incident when accused produced the said letter and disclosed about the same in the police station. This also shows that the endeavor has been made to make the said letter more authentic, however, the way the proceedings have been conducted by the SHO/IO concerned before registration of the case, creates heavy doubt about the voluntariness of the said letter. Further, the SHO concerned is a material witness, however, neither his statement was recorded by the IO nor he has been cited as a witness. Only the SHO concerned could have clarified and answered about the procedure adopted by him regarding registration of the present case FIR No.307/14 State vs Chanchal Paul U/s 302 IPC 29 of 49 and also as to why the case was not registered on the information of PW1. Thus, it is clear the procedure which ought to have been adopted was not adopted and was given a go by and all these questions remained unanswered. Thus, under these circumstances, it is quite possible that the information about the incident was already passed on by PW1, thus, before registration of the case, the possibility of forcefully obtaining the said confession/admission from the accused by the SHO/IO under duress cannot be ruled out.
15. Furthermore, if it is assumed that accused had come to the police station with the said letter and had admitted his guilt and thus, under these circumstances, the IO concerned ought to have followed the procedure as prescribed u/s 164 Cr.P.C for recording of his confessional statement, however, no such steps were taken by the IO. It is well settled law when an accused wish to make a confessional statement, he is to be produced before the authorities concerned with an application for recording of the confessional statement, however, IO did not follow the settled procedure. The IO had taken the accused on two days PC remand but IO did not move the said application which ought to have been moved to do the needful. The inaction on the part of the IO in this regard also creates further doubt about the voluntariness of the said letter. If accused would have written the said letter of his own, then he would also be ready to make same statement before the authority concerned. The reluctance on the part of the IO to have the confessional statement of accused recorded by FIR No.307/14 State vs Chanchal Paul U/s 302 IPC 30 of 49 the Ld. MM, speaks volume about the voluntariness and authenticity of the contents of the said letter Ex.P2.
16. Thus, firstly, the said letter cannot be treated to be the admission of the accused as its voluntariness is highly doubtful as already discussed. Since, it seems from these discussions that the said letter might have been taken under duress; thus, even otherwise, there is no legal sanctity of this letter as the same is hit by the provisions of sec 24 of Evidence Act. Further, there is a procedure to be followed by Ld. Magistrate to have the confessional statement of an accused recorded and if the settled procedure is not followed, the confessional statement recorded by the Ld. Magistrate cannot be taken into consideration to hold the accused guilty.
17. In the case of Rabindra Kumar Pal @ Dara Singh v. Republic of India, reported in 2011 (2) SCC 490, the Hon'ble Supreme Court has propounded that the following guidelines to be followed while recording the confession:
(i) The provisions of Section 164 Cr.P.C., 1973 must be complied with not only in form, but in essence.
(ii) Before proceeding to record the confessional statement, a searching enquiry must be made from the accused as to the custody from which he was produced and the treatment he had been receiving in such custody in order to ensure that there is no scope for doubt of any sort of extraneous influence proceeding from a source interested in the prosecution.
(iii) A Magistrate should ask the accused as to why he wants to make a statement which surely shall go against his interest in the trial.
FIR No.307/14 State vs Chanchal Paul U/s 302 IPC 31 of 49
(iv) The maker should be granted sufficient time for reflection.
(v) He should be assured of protection from any sort of apprehended torture or pressure from the police in case he declines to make a confessional statement.
(vi) A judicial confession not given voluntarily is unreliable, more so, when such a confession is retracted, the conviction cannot be based on such retracted judicial confession.
(vii) Noncompliance of Section 164 Cr.P.C., 1973 goes to the root of the Magistrate's jurisdiction to record the confession and renders the confession unworthy of credence.
(viii) During the time of reflection, the accused should be completely out of police influence. The judicial officer, who is entrusted with the duty of recording confession, must apply his judicial mind to ascertain and satisfy his conscience that the statement of the accused is not on account of any extraneous influence on him.
(ix) At the time of recording the statement of the accused, no Police or Police official shall be present in the open Court.
(x) Confession of a coaccused is a weak type of evidence.
(xi) Usually the Court requires some corroboration from the confessional statement before convicting the accused person on such a statement."
18. In the present case, no efforts were made to have the statement of the accused recorded. The confessional statement of the accused could have been considered if the same would have been made by him before the Ld. Magistrate concerned and that too when Ld. Magistrate would have followed the principles laid down by Hon'ble Supreme Court in this regard. Hence, even otherwise, there is no legal FIR No.307/14 State vs Chanchal Paul U/s 302 IPC 32 of 49 sanctity of the said letter and same cannot be treated to be a confessional statement u/s 164 Cr.P.C.
19. In case, the above referred letter P2 is taken as an admission or confession of guilt by the accused yet it is difficult to go by the said letter as accused has categorically stated that the said letter was written by him at the instance of police. Thus, if the said letter is taken as an admission even then it is of no legal value unless prosecution brings on record some independent evidence to corroborate the allegations.
20. In the case of Sarwan Singh Rattan Singh vs State of Punjab, AIR 1957 SC P637, the Hon'ble Supreme Court has held that in case, the accused has retracted the confession then there should be some evidence on record to corroborate the allegations. Relevant para of this judgment is reproduced as under: If, in our opinion, the approver is unworthy of credit, then it would not be possible to consider the question of the corroboration that his evidence receives from the confessional statement made by Sarwan Singh himself. It is, however, true that Sarwan Singh has made a confession and in law it would be open to the Court to convict him on this confession itself though he has retracted his confession at a later stage. Nevertheless usually Courts require some corroboration to the confessional statement before convicting an accused person on such a statement. What amount of corroboration would be necessary in such a case would always be a question of fact to be determined in the light of the circumstances of each case.
FIR No.307/14 State vs Chanchal Paul U/s 302 IPC 33 of 49
21. In the case of Pyere Lal Bhargava vs State of Rajasthan, AIR 1963 SC109, the Hon'ble Supreme Court has taken the same view. Relevant para reads as under: The second argument also has no merits. A retracted confession may form the legal basis of a conviction if the court is satisfied that it was true and was voluntarily made. But it has been held that a court shall not base a conviction on such a confession without corroboration. It is not a rule of law, but is only a rule of prudence. It cannot even be laid down as a flexible rule of practice or prudence that under no circumstances such a conviction can be made without corroboration, for a court may, in a particular case, be convinced of the absolute truth of a confession and prepared to act upon it without corroboration; but it may be laid down as a general rule of practice that it is unsafe to rely upon a confession, much less on a retracted confession, unless the court is satisfied that the retracted confession is true and voluntarily made and has been corroborated in material particulars.
22. In the present case, the accused has also assailed the voluntariness of the said letter. Thus, under these circumstances, it can be said that accused has retracted from admission contained in the said letter. Thus, in view of the settled law, some independent evidence was required in order to go by the admission contained in the said letter. However, in the present case, there is no other incriminating evidence available on record except the said letter. The material witnesses i.e. PW1 to PW4 and PW9, qua the extra judicial confession are completely hostile and their testimony is analyzed while considering the aspect of extra judicial confession. Moreover there is no other circumstantial evidence available on record which is also discussed FIR No.307/14 State vs Chanchal Paul U/s 302 IPC 34 of 49 under the head of circumstantial evidence. Besides, even if the said letter is treated to be a statement u/s 25 to 27 of Evidence Act yet it is clear from the record that nothing incriminating was recovered after the said alleged admission was made by the accused as the mother of the deceased child had reported the incident much before the time when accused visited the Police Station. Thus, neither any fact was discovered nor any incriminating material in pursuance to the said letter. In view of these discussions, the letter P2 cannot be taken into consideration for holding the accused guilty of the offence.
EXTRA JUDICIAL CONFESSION & CIRCUMSTANTIAL EVIDENCE
23. As per prosecution case, after committing murder, the accused had made a confession before his wife. His wife was present in her room and accused told her between 8 to 9 am that he has killed his daughter by strangulating her. Hearing this, his wife started crying loudly upon which, the brotherinlaw, brother and both workers of accused also came there and in their presence also accused made the same admission. The wife, brotherinlaw, brother and the workers of the accused have been examined by the prosecution as PW1, PW2, PW6, PW7 and PW10. These witnesses were examined by the prosecution to prove the said extra judicial confession of accused, however, none of these witnesses supported the prosecution case and all these five material witnesses are hostile on this aspect. PW1 deposed that on 14.05.14, at about 8 am, she alongwith her husband and daughter were sleeping in their room and their daughter was sleeping between both of them. At about 8 am, when they woke up, FIR No.307/14 State vs Chanchal Paul U/s 302 IPC 35 of 49 they found their daughter in unconscious state whereupon she alongwith her husband went to Chacha Nehru Hospital where doctor concerned told that her daughter was not alive. The other four witnesses have deposed more or less on the same lines. PW2 is the brother of accused and he deposed that on 14.05.14, at about 8 am, he came to know that his brother/accused and his sisterinlaw/PW1 have gone to Chacha Nehru Hospital as their daughter Nikita was unwell and later on, he alongwith Subrato Paul and Hemant Auran came to know that Nikita has died. Similar is the version of PW6, the brotherinlaw of accused. He deposed that on 14.05.14, at about 8 am, he was sleeping in his room and when he woke up, he came to know that his brotherinlaw/accused and his sister/PW1 have gone to Chacha Nehru Hospital as Nikita was unwell. Later on, he also came to know that Nikita has died. PW7 and PW10 are the workers who were also residing with the accused in the tenanted premises. He stated that in the month of May 2014, he alongwith Raju Paul, Ram Paul and Hemant Auraon was sleeping in their room. At about 11 am, accused called him from Chacha Nehru Hospital and told that he alongwith his wife have brought their daughter to the hospital as she is unwell. Raju Paul had also gone to the hospital. After sometime, Suchitra Paul/PW1 and Raju Paul had come back and he came to know that Nikita has passed away but he doesn't know how she passed away. PW10 deposed that on 14.05.14, he was sleeping in his room and he woke up at about 8.309 am and came to know that accused and his wife have gone to the hospital and other persons FIR No.307/14 State vs Chanchal Paul U/s 302 IPC 36 of 49 were present at the house. After some time he came to know that daughter of accused has passed away. All these witnesses were cross examined by Ld. Addl. P.P. and they were confronted with each and every fact mentioned in their statements recorded u/s 161 Cr.P.C. All these witnesses denied each and every single suggestion put by Ld. Addl. P.P. qua the extra judicial confession made by the accused before them and nothing fruitful came on record and they remained completely hostile on this aspect.
24. In view of the afore discussed facts and circumstances it is held that prosecution has failed to prove that accused had made extra judicial confession before these witnesses about his committing murder of his daughter.
CIRCUMSTANTIAL EVIDENCE
25. The present case is based only on circumstantial evidence, thus, prosecution was also required establish on record the motive/reason. In this regard prosecution has relied upon the disclosure statement of the accused which has been brought on record by the prosecution vide Ex PW15/G. As per prosecution case, in his disclosure statement, accused stated that he had purchased a piece of land for Rs.8 Lacs and had paid Rs.2 lakh as earnest money and he was not able to arrange the balance sale consideration. Bhuvan Jeweler was also not paying his money. He was to get the Mundan Ceremony of his daughter performed on 24.05.13 and he was not able to make arrangements for the same and due to this, he was in severe tension.
FIR No.307/14 State vs Chanchal Paul U/s 302 IPC 37 of 49 He could not sleep properly on the night of 13.05.14 and due to this tension, on 14.05.14, at about 8.30 am, while feeding his daughter, his hands reached on the neck of his daughter and he pressed her neck. In her statement u/s 161 Cr.P.C., his wife/PW1 also mentioned the same reason regarding in regard to the tension of the accused. She stated that economic condition of the accused was not good as he was not doing well in his business. She stated that her husband had purchased a land in a village for Rs.8 lakh and he had paid earnest money of Rs.2 lakh and was not able to arrange for the remaining amount. She also stated that Mundan Ceremony of her daughter was fixed for 24.05.14 and her husband could not arrange money for this purpose. She stated that she believes that her husband has killed her daughter due to his poor economical condition and shortage of money. As such, prosecution was required to establish these facts on record, however besides the disclosure statement of accused there is no other evidence on record to show that accused was in poor economical condition and was not able to meet out the said obligations. The wife of the accused has been examined as PW1, however she has not supported the prosecution case on this aspect and she has denied all the suggestions put by Ld. Addl. P.P. in this regard. As per record, the accused had purchased some land in the village and was to pay balance sale consideration of Rs 6 Lac. The charge sheet is completely silent on this aspect that whether IO conducted any investigation in this regard. In order to strengthen the said circumstances, the IO was required to collect the particulars of FIR No.307/14 State vs Chanchal Paul U/s 302 IPC 38 of 49 the land allegedly purchased by the accused. He was also required to collect the relevant documents of the said transaction and also to record the statement of owner of the land and the witnesses of this transaction. As per record the accused was depressed for another reason that he was not able to arrange funds for the Mundan Ceremony of his daughter which was scheduled for 24.05.14 at his native village. Again, IO did not conduct any investigation on this aspect. In order to substantiate the allegations, the IO was required to bring on record the relevant evidence regarding the place finalized for the ceremony and also the statement of the priest and relatives who were to attend the ceremony. The IO also did not record the statement Bhuvan Jeweler who according to the accused did not pay his dues. Moreover, prosecution has also cited the landlady of the accused as PW 9. PW9 deposed that the accused was regularly paying monthly rent of Rs.7150/. Thus, from the statement of PW9 also, it does not appear that accused was facing any financial difficulty. In view of these discussions, it is clear that prosecution has also failed to establish that the accused was under depression due to financial crunch. Prosecution has also failed to prove the above referred facts and circumstances which allegedly led the accused to commit the murder of his daughter.
SECTION 106 EVIDENCE ACT: i. Can S106 of Evidence Act be sole ground to convict the accused?
ii. When does S106 of Evidence Act come into play?
FIR No.307/14 State vs Chanchal Paul U/s 302 IPC 39 of 49
26. Since, the child was killed within the tenanted premises, it is also required to be seen if provisions of Sec 106 Evidence Act also has some role to play in the present case. Before analyzing the aspect of applicability of this provision in the present case, the legal position in regard to this provision is required to be discussed.
27. The provisions of Section 106 of Evidence Act reads as under: Burden of proving fact especially within knowledge. When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
28. In the case reported as Shambhu Nath Mehra v. State of Ajmer, 1956 SCR 199, the Hon'ble Supreme Court has made the following observation in regard to the circumstances when accused can be asked to explain the circumstances u/s 106 Evidence Act. The relevant paras of this case are reproduced as under:
11. This lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary. It is de signed to meet certain exceptional cases in which it would be im possible, or at any rate disproportionately difficult for the prosecu tion to establish facts which are "especially" within the knowledge of the accused and which he could prove without difficulty or in convenience.
The word "especially" stresses that it means facts that are preem inently or exceptionally within his knowledge. If the section were to be interpreted otherwise, it would lead to the very startling con clusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not.
It is evident that cannot be the intention and the Privy Council has twice refused to construe this section, as reproduced in certain FIR No.307/14 State vs Chanchal Paul U/s 302 IPC 40 of 49 other Acts outside India, to mean that the burden lies on an ac cused person to show that he did not commit the crime for which he is tried. These cases are Attygalle v. The King, 1936 PC 169 and Seneviratne v. Rule 19363 ER 36 AT P. 49.
12. Illustration (b) to Section 106 has obvious reference to a very special type of case namely to offences under Sections 112 and 113, Indian Railways Act for traveling or attempting to travel with out a pass or ticket or with an insufficient pass, etc. Now if a passenger is seen in a railway carriage, or at the ticket barrier, and is unable to produce a ticket or explain his presence, it would obviously be impossible in most cases for the railway to prove or even with due diligence to find out, where he came from and where he is going and whether or not he purchased a ticket. On the other hand, it would comparatively simple for the passen ger either to produce his pass of ticket or, in the case or loss or of some other valid explanation, to set it out, and so as proof is con cerned, it would be easier for him to prove the substance of his ex planation than for the State to establish his falsity.
13. We recognise that an illustration does not exhaust the full con tent of the section which it illustrate but equally it can neither cur tail nor expand its ambit; and if knowledge of certain facts is as much available to the prosecution, should it choose exercise due diligence, as to the accused, the facts cannot be said to be espe cially" within the knowledge of the accused.
This is a section which must be considered in a common sense way; and the balance of convenience and the disproportion of labour that would be involved in finding out and proving certain facts balanced against the triviality of the issue at stake and the ease with which the accused could prove them, are all matters that must be taken into consideration. The section cannot be used to undermine the well established rule of law that save in a very exceptional class of case, the burden is on the prosecu tion and never shifts.
29. In the case reported as State of West Bengal Vs Mir Mohammad Umar 2000 Cri. L.J. 4047 the Hon'ble Supreme Court has held that in order to shift the burden on the accused, firstly, prosecution has to FIR No.307/14 State vs Chanchal Paul U/s 302 IPC 41 of 49 prove certain facts. The relevant paras of this judgment are as follows:
36. In this context we may profitably utilise the legal principle embodied in Section 106 of the Evidence Act which reads as follows : "When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him"
37. The section is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the section would apply to cases where the prosecution has succeeded in proving facts from which reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference.
30. It is also well settled law that in order to shift the burden on the accused prosecution is required to establish that the premises where incident took place was exclusively occupied by the deceased and the accused and at the time of incident only the accused and deceased were present and the premises where incident took place was either not occupied or accessible by the other persons. In the case reported as Raj Kumar Prasad Tamarkar Vs State of Bihar and another, 2007(1) RAJ417 has The Hon'ble Supreme Court has made the following observations in this regard:
22. The autopsy report shows that 'a blackening and charring' existed so far as Injury No. (i) is concerned. The blackening and charring keeping in view the nature of the firearm, which is said to have been used clearly go to show that a shot was fired from a short distance. Blackening or charring is possible when a shot is fired from a distance of about 2 feet to 3 feet. It, therefore, cannot be a case where the death might have been caused by somebody by firing a shot at the deceased from a distance of more than 6 feet. The place of injury is also FIR No.307/14 State vs Chanchal Paul U/s 302 IPC 42 of 49 important. The lacerated wound was found over grabella (middle of forehead). It goes a long way to show that the same must have been done by a person who wanted to kill the deceased from a short distance. There was, thus, a remote possibility of causation of such type of injury by any other person, who was not in the terrace. Once the prosecution has been able to show that at the relevant time, the room and terrace were in exclusive occupation of the couple, the burden of proof lay upon the respondent to show under what circumstances death was caused to his wife. The onus was on him. He failed to discharge the same.
23. This legal position would appear from a decision of this court in Nika Ram v. The State of Himachal Pradesh [AIR 1972 SC 2077] wherein it was held :
"It is in the evidence of Girju PW that only the accused and Churi deceased resided in the house of the accused. To similar effect are the statements of Mani Ram (PW 8), who is the uncle of the accused, and Bhagat Ram school teacher (PW 16). Ac cording to Bhagat Ram, he saw the accused and the deceased together at their house on the day of occurrence. Mani Ram (PW 8) saw the accused at his house at 3 p.m., while Poshu Ram, (PW 7) saw the accused and the deceased at their house on the evening of the day of occurrence. The accused also does not deny that he was with the deceased at his house on the day of occurrence. The house of the accused, according to plan PM, consists of one residential room one other small room and a varandah. The correctness of that plan is proved by A. R. Verma overseer (PW 5). The fact that the accused alone was with Churi deceased in the house when she was murdered there with the Khokhri and the fact that the relations of the accused with the deceased, as would be shown hereafter, were strained would, in the absence of any cogent explanation by him, point to his guilt."
31. In the case reported as Rashid @ Zakir & anr vs State of UP (Capital Case No. 200 of 2018 (Reference No. 05 of 2018), connected FIR No.307/14 State vs Chanchal Paul U/s 302 IPC 43 of 49 with Jail Appeal No. 458 of 2018 it has been held that in order to invoke provision of sec 106 Evidence Act, it is also to be established that the premises where the incident took place was not accessible to any other person.
45. The next aspect of the case which is to be examined is the evidence under Section 106 of the Evidence Act against the ap pellant as it is a case of the prosecution that accused Rashid @ Zakir was living along with his wife at the second floor of the factory in a room and after the incident he was not found at the place of occurrence along with his wife. It is admitted case of the prosecution that one key of the factory was with accused Rashid @ Zakir and other key was with the owner of the factory P.W. 11 Mohammad Kamran, hence the presumption under Sec tion 106 of the Evidence Act also cannot be drawn against the accused Rashid @ Zakir also as it cannot be said that the fac tory in which he was Chaukidar and also living in a room along with his wife, was in his exclusive possession and was not ac cessible to anyone else has one of the keys of the factory was with P.W. 11 Mohammad Kamran, therefore, the said premises of the factory was accessible to others also. We are cautious about the fact that no doubt three persons have been done to death with large number of injuries found on their persons but to say that it was accused Rashid @ Zakir, who committed the murder of three deceased with sharp edged weapon which is a brutal murder is highly doubtful. It is well settled that suspicion howsoever, showing cannot take the place of proof. The Apex Court in the case of Sujit Biswas v. State of Assam reported in (2013) 12 SCC 406 while examining the distinction between 'proof beyond reasonable doubt' and 'suspicion' has held as under: "13. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that 'may be' proved, and something that 'will be proved'. In a crimi nal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between 'may be' and 'must be' is quite FIR No.307/14 State vs Chanchal Paul U/s 302 IPC 44 of 49 large, and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere con jectures or suspicion do not take the place of legal proof. The large distance between 'may be' true and 'must be' true, must be covered by way of clear, cogent and unimpeachable evi dence produced by the prosecution, before an accused is con demned as a convict, and the basic and golden rule must be ap plied. In such cases, while keeping in mind the distance be tween 'may be' true and 'must be' true, the court must maintain the vital distance between mere conjectures and sure conclu sions to be arrived at, on the touchstone of dispassionate judi cial scrutiny, based upon a complete and comprehensive ap preciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided, and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a rea sonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense."
32. In view of the settled law the initial onus is always on the prosecution to prove the allegations, however it is already discussed that in the present case, prosecution has failed to prove all the aspects i.e. admission of accused through a letter, his extra judicial confession before his wife and other members of family and also the reason/motive of murder. For shifting the onus on the accused to explain the circumstances, firstly it was required to be established that the facts which may be sought to be explained must be within the exclusive knowledge of the accused. In the instant case, it is undisputed that death of the child is homicidal, however, can the accused be asked to discharge this burden, has to seen from the evidence led by the prosecution.
FIR No.307/14 State vs Chanchal Paul U/s 302 IPC 45 of 49
33. It is admitted position of fact that there were six persons residing in the tenanted premises including the accused. As per prosecution case, at about, 8 am, on 14.05.14, the wife of the accused was sleeping in her room and accused had taken the child to another room for feeding milk and while feeding milk, he suddenly pressed the neck of the child and he strangulated her and subsequently, he told about the same to his wife. As per prosecution evidence, on the date of incident, the other four persons i.e. PW2 to PW4 and PW9 were residing in another room. As per testimony of PW1, the mother of the child, she alongwith her husband were sleeping in their room and child was sleeping between them and on dated 14.05.14 when at about 8 am, they woke up, they found the child in unconscious state and she alongwith her husband/accused immediately rushed to the hospital where doctor concerned told that the child was not alive. Thus, it is clear from the testimony of PW1 that she as well as her husband both were sleeping together in the same room in which the child was found in unconscious state in the morning. Thus, it is clear that on the date of incident the tenanted portion was occupied by six persons. There is no evidence whether the other four persons had any access or not to the room where the child was sleeping and was found unconscious, however, it is clear from the evidence of PW1 that at that time, PW1 as well as accused both were present together. Thus, prosecution has failed to establish that at the relevant time the accused was in exclusive possession of the room/premises. In view of these discussions it is clear that the premises, especially, the room where FIR No.307/14 State vs Chanchal Paul U/s 302 IPC 46 of 49 the child was found unconscious was not exclusively occupied by the accused. As such, under these circumstances, the accused cannot be asked to explain as to how the incident took place. Thus, under these circumstances it cannot be said beyond reasonable doubt that the accused is the person who had strangulated the child. Since the room where child was found in unconscious state was also habitated by other persons of the family, therefore, it will always be highly doubtful, if the child was strangulated by the accused.
34. In the present case there is no direct evidence available against the accused to connect him with the offence and the present case is based upon the circumstantial evidence, thus, the legal position in regard to the appreciation of circumstantial evidence is required to be noted: ESSENTIALS: In the case reported as Sangili @ Sanganathan Vs State 2014(10) SCC 264 the Hon'ble Supreme Court has held that for holding the accused guilty in the cases based upon circumstantial evidence, the following requirements should be fulfilled: "(i) The circumstances from which the conclusion of guilt is to be drawn must or should be and not merely 'may be' fully established;
(ii) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(iii) The circumstances should be of a conclusive nature and tendency;
(iv) They should exclude every possible hypothesis except the one to be proved; and FIR No.307/14 State vs Chanchal Paul U/s 302 IPC 47 of 49
(v) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
35. NO CONJUCTURES OR SURMISES: In the case reported as Hanumant Govind Nargundkar and another v. State of Madhya Pradesh AIR 1952 SC 343, the Hon'ble Supreme Court has held that the suspicion and conjectures cannot take the place of legal proof in the cases which are based upon circumstantial evidence.
36. MOTIVE: In the case of Rishipal Vs State of Uttrakhand 2013(12) SCC 551, the Hon'ble Supreme Court has held that motive of offence is also to be proved in the cases based upon circumstantial evidence. The Hon'ble Supreme Court has made the following observations in this case: "It is fairly wellsettled that while motive does not have a major role to play in cases based on eyewitness account of the incident, it assumes importance in cases that rest entirely on circumstantial evidence. [See Sukhram v. State of Maharashtra (2007) 7 SCC 502, Sunil Clifford Daniel (Dr.) v. State of Punjab (2012) 8 SCALE 670, Pannayar v. State of Tamil Nadu by Inspector of Police (2009) 9 SCC 152]. Absence of strong motive in the present case, therefore, is something that cannot be lightly brushed aside."
37. EVEN STRONG SUSPICION CANNOT TAKEN PLACE OF PROOF: In the case reported as, Sangili @ Sanganathan Vs State 2014(10) SCC 264, the Hon'ble Supreme Court has held that the accused cannot be convicted in the cases of circumstantial evidence even if there is strong suspicion against the accused.
FIR No.307/14 State vs Chanchal Paul U/s 302 IPC 48 of 49
38. In view of these discussions it is held that the prosecution has failed to prove each and every aspect of the case as discussed. The prosecution failed to prove the voluntariness of admission of accused vide letter Ex.P2, extra judicial confession and motive of the murder. Further, in the instant case, no aid of sec 106 Evidence Act can be taken, as the premises/room where the incident took place was not exclusively possessed by accused.
CONCLUSION:
39. In view of the aforesaid discussions, it is held that prosecution has failed to prove its case against the accused beyond reasonable doubt; hence, the accused is acquitted of the charges leveled with. The accused is directed to furnish the surety bond u/s 437A Cr.P.C. File be consigned to record room.
(Ajay Gupta) ASJ02, EAST/KKD/Delhi Announced in the open court on 22nd July 2020 FIR No.307/14 State vs Chanchal Paul U/s 302 IPC 49 of 49