Calcutta High Court (Appellete Side)
Madhumita Sharma vs State Of West Bengal on 26 February, 2019
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
1 IN THE HIGH COURT AT CALCUTTA CRIMINAL APPELLATE JURISDICTION Present:
The Hon'ble Justice Joymalya Bagchi And The Hon'ble Justice Manojit Mandal C.R.A. 441 of 2015 Madhumita Sharma
-Vs-
State of West Bengal For the Appellant : Mr. Jayanta Narayan Chatterjee, Mr. Apalak Basu, Ms. Moumita Pandit, Ms. Priyanka Ghosh Chowdhury, Mr. Nazir Ahmed, Mr. Supreem Naskar.
For the State : Mr. Madhusudan Sur, Ld. A.P.P.,
Mr. Manoranjan Mahata.
Heard on : 26.02.2019
Judgment on: 26.02.2019
Joymalya Bagchi, J. :-
The appeal is directed against the judgment and order of conviction and sentence dated 27th and 28th January, 2015 passed by the learned Additional Sessions Judge, 17th Court, Alipore, South 24-Paraganas in Sessions Trial No. 04(11)2013 arising out of Sessions Case No.73(06)2013 convicting the appellant 2 for commission of offence punishable under Sections 302/309 of the Indian Penal Code and sentencing her to suffer imprisonment for life and to pay a fine of Rs.1,000/- in default to suffer simple imprisonment for further two months for the offence punishable under Section 302 of the Indian Penal Code and to suffer simple imprisonment for three months for the offence punishable under Section 309 of the Indian Penal Code. Both the sentences to run concurrently.
Gist of the prosecution case levelled against the appellant is to the effect that on 4.1.2013, the appellant and her son Deep Sharma were admitted to M. R. Bangur Hospital with a history of poisoning. On the report of her husband, Babul Shamra (who was not examined in the present case), Tapas Karmakar, Sub Inspector of Police attached to Patuli Police Station, P.W.2 came to the hospital and recorded the statement of the appellant who was struggling for survival. The appellant allegedly revealed that she had matrimonial dispute with her husband on financial and other issues. Her husband had married another woman. There were quarrels between them and she was under severe depression. As a result, she took a decision to end her life and that of her son. Accordingly, on 3.1.2013 around 6.30 P.M. she mixed poison in the milk of the child and fed him. She also consumed the poisoned milk. Her husband removed them to M. R. Bangur Hospital where her son was declared dead and she admitted in the said hospital. On the basis of the aforesaid declaration made by the appellant to the police officer incriminating herself in the murder of her son, P.W.2 lodged first information report being Patuli P. S. Case No.12 dated 4.1.2013 under Section 302 of the Indian Penal Code against her. The appellant was arrested and in 3 conclusion of investigation, charge sheet was filed against her. The case was committed to the court of sessions and transferred to the court of the learned Additional Sessions Judge, 17th Court, Alipore, South 24-Paraganas for trial and disposal. Charges were framed under Sections 302/309 of the Indian Penal Code against the appellant. The appellant pleaded not guilty and claimed to be tried.
Prosecution examined 13 witnesses and exhibited a number of documents. Defence of the appellant was one of innocence and false implication. In conclusion of trial, the trial judge by judgement and order dated 27.01.2015 and 28.01.2015 convicted and sentenced the appellant, as aforesaid.
Mr. Chatterjee, learned Advocate appearing for the appellant argued that the trial judge had convicted the appellant on the basis of inadmissible evidence. Ext.1 recorded by a police officer is a self-incriminating statement which is inadmissible in terms of Section 25 of the Evidence Act. Apart from the aforesaid exhibit, there is no direct evidence connecting the appellant with the alleged murder. Hence, the appellant is entitled to be acquitted.
On the other hand, Mr. Sur, learned Additional Public Prosecutor appearing on behalf of the State submitted that the contents of Ext.1, statement made by the appellant to the police officer, is corroborated by other independent evidence. In the course of investigation, the container and poisoned milk were recovered from the room of the appellant. Subsequent recoveries corroborates the confessional statement of the appellant and, therefore, the same does not suffer from vice of inadmissibility. The appellant was alone with the victim in the room 4 and, therefore, adverse inference was rightly drawn against her as she failed to explain how her son consumed poison.
From the rival submissions made across the Bar and on an analysis of the evidence on record, it appears that the prosecution case essentially hinges on the confessional statement made by the appellant before the police officer, P.W.2 and other circumstantial evidence.
P.W.2 deposed on 4.1.2013 around 10.40 A.M. the appellant's husband Babul Sharma and relatives came to the police station and informed that the appellant had administered poison to herself and her son, Deep Sharma. As a consequence, Deep Sharma died while the appellant was admitted at M. R. Bangur Hospital. P.W.2 noted such information in the general diary and as per direction of Officer-in-charge, Patuli Police Station went to M. R. Bangur Hospital where he recorded the aforesaid confessional statement. He deposed that the statement was recorded before a Doctor. He proved the statement, Ext.1. Thereafter, he went to the house of Babul Sharma. He seized plastic pouch packets in torn condition, one silver coloured container with steel cover filled with milk, one glass bottle with milk under a seizure list, Ext.2. He seized the wearing apparels of Babul Sharma which were stained with vomit. He proved the written complaint, Ext.4. On investigation, he came to learn that the husband was not present in the house and the victim was alone in the house at the time of occurrence.
Other witnesses examined in the instant case viz., P.W.3, Rumi Tapadar, P.W.4, Kausik Nandy, P.W.5, Nemai Nandi and P.W.6, Manoj Kumar Singh are 5 reported witnesses and did not have any direct knowledge with regard to the cause of death of the victim.
P.W.7, Dr. Tapan Kanti Roy, is the post mortem doctor who held post mortem examination on the body of the victim and opined that the victim had died due to oral consumption of toxic substance which is ante mortem in nature. He preserved the viscera with stomach contents for chemical examination. He proved the post mortem report, Ext.5.
P.W.8, Dr. Avijit Mitra deposed that he was a Medical Officer attached to M. R. Bangur Hospital. On 3.1.2013, the father of Deep Sharma brought his son to the hospital. He examined Deep Sharma and declared him dead. He proved his medical report. He also examined the appellant and found her unconscious. Pulse was feeble. Prognosis was uncertain, Ext.8.
P.W.9, Natun Ghatak is the Senior Scientific Officer of F.S.L. who examined blood sample, viscera and stomach contents of Dip Sharma. He found carbofuran in both viscera and blood of the deceased. He also found carbofuran in the plastic foil stained with violet colour and whitish liquid said to be milk. He proved his report, Ext.10.
P.W.11, Khitish Chandra Sikdar, was an A.S.I. of Police attached to Jadavpur Police Station who held inquest over the body of the victim, Deep Sharma. He proved his report, Ext.12.
P.W.12, Sm. Shahnawaz was the Judicial Officer who recorded confessional statement of the appellant, Ext.14. In cross, he admitted that he had not given caution to the appellant and recorded the confessional statement. 6 He had not sent her for segregation. He had administered oath to the accused while recording her statement.
P.W.13, Mousumi Biswas was the Investigating Officer of the instant case. She arrested the appellant. She collected post mortem report, medical reports of the appellant as well as of the victim. She sent the plastic packets in torn condition and one glass bottle with milk for chemical examination. She collected the chemical examination report. She forwarded the appellant for recording statement under Section 164 of the Code of Criminal Procedure. She submitted charge sheet.
I have discussed the aforesaid evidence on record to demonstrate that apart from the purported confessional statement of the appellant before the police officer, P.W.2, there is no direct evidence connecting the appellant with the murder of her son. Perusal of Ext.1 would leave no doubt in one's mind that the statement made by the appellant to the police officer is a self-incriminating confession.
A confessional statement made before a police officer is hit by Section 25 of the Evidence Act and is in admissible in law.
Section 25 of the Evidence Act reads as follows:
"Section 25: Confession to police officer not to be proved.- No confession made to a police officer, shall be proved as against a person accused of any offence."
In view of the aforesaid provision confession made by the appellant before the police officer, P.W 2 is inadmissible and could not have been relied upon. In this regard reference may be made to Aghnoo Nagesia Vs. State of Bihar, 7 reported in A.I.R. 1966 page 119 wherein the Hon' ble Apex Court held that a confessional statement made by a person before a police officer even prior to registration of F.I.R. accusing him of the offence is inadmissible in law. In the said report, the accused had gone to the police station and made a confessional statement which was recorded as first information report. The court inter alia held as follows:
"A confession made to a police officer under any circumstances is not admissible in evidence against the accused. It covers a confession made when he was free and not in police custody, as also a confession made before any investigation has begun. The expression 'accused of any offence' covers a person accused of an offence at the trial whether or not he was accused of the offence when he made the confession......"
Applying the aforesaid ratio to the facts of the case, I have no hesitation that the confessional statement recorded by P.W.2 is inadmissible and ought not to have been relied upon. Without prejudice to the aforesaid conclusion, I find that the said statement was said to be recorded before a Doctor who has not been examined in this case. P.W.8, Medical officer at M. R. Bangur Hospital who examined the appellant on her admission to the hospital deposed that the appellant was unconscious at the time when she examined her. Whether the appellant had regained consciousness and was in a fit state of mind to make the confession before P.W. 2 has not been established beyond doubt in the instant case.
Even the doctor who is said to have been present at the time of recording confession has not been examined to prove the mental state of the appellant at the relevant time. I am unable to subscribe to the argument on behalf of the 8 prosecution that recoveries at the place of occurrence were pursuant to the leading statement of the appellant, Ext.-1 and such statement is admissible in terms of section 27 of the Evidence Act. Neither the contents of the statement, Ext-1 nor the circumstances of the case justify such conclusion. Mere fact that P.W. 2 went to the place of occurrence and seized articles after recording the statement of the appellant does not lead to such conclusion when there is nothing in the statement of the appellant to support the plea that the articles were discovered pursuant to her statement.
Coming to the judicial confession recorded by P.W. 12, I note that such confession was recorded without giving caution to the appellant in gross breach of the mandatory safeguards engrafted under Section 164 of the Code of Criminal Procedure.
Hence, such confession cannot be relied upon and was rightly rejected by the trial court.
As the aforesaid confessions were inadmissible in law, the trial judge drew adverse inference against the appellant on the premise that no one apart from the appellant and the victim were in the room at the time of occurrence and the appellant had failed to explain how her son had consumed poison.
The appellant was living with her husband in the said house. Relationship between the couple was strained due to financial and other domestic reasons. Her husband had married another woman who was residing at Bihar. There is no legally admissible evidence that at the time of occurrence, the husband was not present in the house. P.W.2 deposed he had made investigation that the husband 9 was not in the house at the time of occurrence. No independent evidence to that effect has been led by the prosecution. I am afraid that the opinion of the investigating officer in that regard is not proved of the fact that the husband of the appellant was not present in the house at the time of occurrence. The trial court failed to appreciate the evidence on record in that perspective and erroneously came to a conclusion that the appellant was alone in the house with the child at the time of occurrence. When the prosecution has failed to prove exclusive access of the appellant to the child at the time of poisoning, I consider it unsafe to record an order of conviction against the appellant by drawing adverse inference against her as she failed to explain the circumstances leading to the death of the victim. Possibility of the presence of the husband at the place of crime and his role in the incident cannot be wholly ruled out. His non- examination as a prosecution witness also leads to a snap in the chain of circumstances and does not justify invocation of adverse inference against the appellant.
In view of the aforesaid discussion, I am of the opinion that the appellant is entitled to benefit of doubt. Conviction and sentence of the appellant are set aside.
The appellant shall be forthwith be released from the custody, if not wanted in any other case, on executing a bond to the satisfaction of the trial court which shall remain in force for a period of six months in terms of Section 437A of the Code of Criminal Procedure.
The appeal is allowed.
10Copy of the judgment along with L.C.R. be sent down to the trial court at once.
Urgent photostat certified copy of this order, if applied for, shall be given to the parties, as expeditiously as possible on compliance of all necessary formalities.
I agree.
(Manojit Mandal, J.) (Joymalya Bagchi, J.)
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