Calcutta High Court (Appellete Side)
Bishnupada Samanta & Anr vs The State Of West Bengal on 16 February, 2017
Author: Sanjib Banerjee
Bench: Sanjib Banerjee
1 16.2.2017
CRA 693 of 2009 Bishnupada Samanta & Anr.
Vs. The State of West Bengal Mr. Partha Sarathi Bhattacharyya ..for the Appellants Mr. Subir Banerjee Ms. Kakali Chatterjee ..for the State The appellants question their conviction under Section 302 of the Penal Code and the consequent sentences primarily on the ground that the conviction is based on their alleged extra-judicial confession and the testimony of the mother of the victim and another neighbour who has a litigation against the first appellant.
The complaint was lodged on January 28, 2002 by the daughter-in-law of the appellants. At the relevant time, the son of the appellants and the husband of the complainant was away on work in Surat. The husband used to work in Surat and come home only occasionally. The complainant alleged that in the afternoon of January 27, 2002 while the complainant was attending to her chores outside the 2 room or the house, the parents-in-law of the complainant were inside the room or the house along with the five-year old son of the complainant and the seven and a half month-old daughter. The parents-in- law left the house to go to the market, whereupon the complainant entered the room or the house and found that the seven and a half month-old girl child was frothing in the mouth. The complainant claimed that she cried for help, whereupon some neighbours assembled and either a local doctor was summoned or the girl child was taken to such doctor who found the child to be dead. The complainant claimed that the parents-in-law of the complainant had administered poison to the child since the parents-in-law doubted the paternity of the child.
Several neighbours were called as witnesses, but a number of them turned hostile and appropriate questions may not have been put on behalf of the prosecution to a few others. The trial court recognised that it was the evidence of the mother of the victim and of one Bimal Khatua, who was called as PW-5, which had to be looked into and studied carefully.
The mother claimed that she was outside the 3 house at or about 3 pm when her infant son and the child were inside. It is not clear whether both the children were in the room or on the varandah outside the room. However, nothing may turn on such aspect, particularly since Bimal Khatua claimed that he had heard from the mother of the victim that the victim was in the varandah when the mother was working outside the house on that fateful afternoon. The mother also asserted that at least three other villagers informed her that they had seen the parents-in-law of the complainant purchase pesticide from a shop owned by one Badal Maity. The three villagers were called as witnesses, but one of them turned hostile and the two others did not volunteer any statement that they had seen the appellants purchase any pesticide or insecticide. No question in such regard was put to them by the prosecution and the defence, quite understandably, did not tread such treacherous terrain. Though Badal Maity was called as a witness, he did not accept or remember that the appellants herein had purchased any insecticide or pesticide from him. Curiously, Badal Maity was not declared hostile by the prosecution.
4
To continue with the testimony of the complainant, she claimed that upon the victim dying and the quack doctor confirming that the victim had been poisoned, a number of villagers gathered and they accosted the appellants herein as they returned from the market, whereupon the appellants confessed to the crime and admitted that they had administered the poison. That the victim died of poisoning was confirmed by the FSL report of October 28, 2005 that observed that endosulfan was found in the viscera and endosulfan was described in such report to be an insecticide which is toxic to human consumption.
PW-1 Paresh Maity had allegedly implicated the appellants herein in course of his statement made to the investigating officer. However, he turned hostile and was declared as such. Notwithstanding PW-1 being declared hostile, his evidence was that the girl child had died and such child was pronounced dead by Narayan Samanta, a local quack doctor. Narayan Samanta was called as PW-2, but he not only pretended not to recognise the appellants in the dock, but he also claimed that he had no recollection of the incident of January 27, 2002. However, to repeat, 5 despite Paresh Maity turning hostile, he had clearly stated that Narayan Samanta was the quack doctor who pronounced the victim dead. On the basis of the statement attributed to Narayan Samanta in course of the investigation, he was cross-examined by the prosecution. A suggestion was put to him as to whether he had stated that the victim had died of poisoning upon smelling the mouth of the child. He denied such suggestion, but the investigating officer in his testimony maintained that such a statement had been made by the quack doctor.
In course of the cross-examination of Bimal Khatua, the defence was able to establish that such witness had an axe to grind against the first appellant and there was a litigation pertaining to preemption pending between the two. Bimal Khatua claimed that he had entered into an agreement for sale to buy a land owned by the first appellant, but the registration was not completed by the first appellant despite the payment being received. Though Bimal Khatua's apparent hostility towards the first appellant was established, the nature of the cross-examination was such that the appellants virtually admitted that an 6 agreement for sale of a piece of the land had been executed by the first appellant in favour of Bimal and the registration thereof was not completed.
While weighing the evidence of PW-5 and considering whether it should be regarded as credible in the light of Bimal Khatua's pending case against the first appellant, the trial court found that the two matters may not have any nexus. The trial court reasoned that if the first appellant went to jail, Bimal Khatua would stand to lose more as the registration of the agreement would not be completed. The trial court found the testimony of Bimal Khatua to be otherwise acceptable. Bimal testified that upon the villagers, who were about 150 in number, questioning the parents-in- law of the complainant regarding the incident, "they admitted that they administered poison to the daughter of Sefali." It was also Bimal's perception that the parents-in-law of the complainant had resorted to such extreme measure since they regarded the victim as an illegitimate child.
The forensic report referred to 10 cc of a white liquid, discovered to be endosulfan, that was found in the stomach of the victim. It is evident from the 7 testimony of the complainant mother that within a few minutes of her parents-in-law leaving the house she entered the room and found the victim frothing in the mouth. According to the complainant, the incident may have occurred at or about 3 pm and by 4 pm the child was dead.
From the trend of the cross-examination adopted by the defence in course of the trial, it appears that a case was sought to be made out that such insecticide was commonly available and it may have been mistakenly or negligently spilled on the floor which the child may have licked in her innocence. However, such defence would not stand in the wake of the finding in the forensic report that there was as much as 10 cc of endosulfan in the stomach of the victim. Such a large portion of poison had per force to be administered to the victim. It was also the mother's evidence, as expected in respect of a seven and a half month-old child, that the child could neither walk nor even crawl and could move only on her belly. Further, it was the mother's unchallenged testimony that the daughter was found on the bed. It is unlikely that such a substantial portion of the insecticide would be 8 left on the bed or that the child would lick the insecticide on the floor and, despite not being able to walk or crawl, she would jump to the bed.
The investigating agency may not have been diligent in presenting the material that may have been available with a bit more effort. However, given the credible testimony of the mother that no one other than her parents-in-law and a toddler were present in the house when the incident took place and the fact that 10 cc of the poison was discovered in the stomach of the victim, the trial court appropriately found that the key links in the chain of circumstantial evidence had been closed beyond reasonable doubt.
In the light of the credible versions of the incident and what happened immediately after it was discovered that the child had been poisoned as rendered by the mother of the victim and neighbour Bimal Khatua, the order of conviction does not call for any interference. CRA 693 of 2009 is dismissed.
Let copies of this order be immediately made available to the appellants and to the correctional home where they may now be lodged.
The lower court records be sent down immediately 9 along with a copy of this order for appropriate action in accordance with law.
(Sanjib Banerjee, J.) (Siddhartha Chattopadhyay, J.)