Calcutta High Court (Appellete Side)
Uttam Singha vs The State Of West Bengal on 3 August, 2018
Author: Jay Sengupta
Bench: Md. Mumtaz Khan, Jay Sengupta
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Appellate Side
Present:
The Hon'ble Justice Md. Mumtaz Khan
And
The Hon'ble Justice Jay Sengupta
C.R.A. 741 of 2004
Uttam Singha
Versus
The State of West Bengal
For the Appellant : Ms. Kakali Chatterjee
... Amicus Curaie
For the State : Mr. Arun Kumar Maity
Ms. Sukanya Bhattacharya
Ms. Sujata Das
... Advocates
Heard on : 10.05.2018
11.05.2018
Judgment on : 03.08.2018
Jay Sengupta, J.:
1. The present appeal is directed against the judgment and order of conviction and sentence dated 22nd July, 2004 and 23rd July, 2004 passed by the learned Additional Session Judge, 4th Court, Paschim Medinipore in Session Trial No. IX/ September / 2001, thereby convicting the accused Uttam Singha under Section 302 of the Indian Penal Code and sentencing him to suffer imprisonment for life and to pay a fine of Rupees One Thousand, in default to suffer imprisonment for one month. In this case the appellant was convicted for an infanticide, the murder of his own baby girl. Prosecution Case:
2. PW 5 Chandan Mondol, a cousin brother of the accused appellant lodged the First Information Report in this case. Although, he turned hostile during trial, on 8th May, 1998 he lodged a First Information Report at about 16.05 hours alleging that the appellant had taken his own infant daughter from his wife Tulsi at about 8 O'clock in the morning that day in the guise of taking her out. After sometime when he came back with the child and gave it to her mother, the infant started vomiting. Tulsi smelt poison near her mouth. Tulsi took the child to a doctor accompanied by some others, but the infant died while in transit. The doctor declared her dead and suspected that it was a case of poisoning. After birth of the girl child, the appellant did not keep any terms with the wife and child. On the fateful day he suddenly came to take the child out. PW 5 further alleged that upon interrogation by villagers, the appellant admitted that he had himself poisoned his child.
3. Investigation commenced. PW 12, a Sub-Inspector of Police conducted an inquest over the dead body of the victim child of nine months Mamata Singha on 8th May, 1998 in the verandah of the house of the victim. He found some frothy substance coming out of the victim's mouth and nose. The fair complexion of the child had turned a bit bluish as a result of administering of poison. He found a red scar on the neck. PW 12 recorded that according to the witnesses the appellant had murdered her by administrating poison. The purported container of poison, wearing apparels of the baby were taken into custody. The signature of the appellant was taken on the Inquest Report. PW 8 conducted the Post Mortem Examination on the dead body on 9th May, 1998 at about 2.30 P.M. Approximately 30 ml. of bad odoured whitish fluid was found present in the stomach. The opinion regarding death was kept pending till the viscera report was available. Subsequently, a charge-sheet was submitted on 3rd June, 2002.
4. The prosecution examined 14 witnesses to establish its case. From the trend of cross-examination of the prosecution witnesses and the examination of the accused under Section 313 of the Code it appears that the defence case was that of denial of the prosecution case. Evidence On Record:
5. From a careful perusal of the evidence on record, it is found that PW 1 was a co-villager of the victim and the appellant. He accompanied those persons who were taking the ailing child to a doctor. He deposed that they returned back as the doctor was absent in his chamber. This witness was declared hostile. PW 2, another co-villager too turned hostile. But he admitted that when the victim's grand-father called him, he went and found that the baby was crying. They tried to take child to a doctor, but he was not present in his chamber. He deposed that he saw froth coming out of the baby's mouth. PW 3 was a doctor to whose chamber the baby was taken, but he was absent. Besides this, he did not say anything and was declared hostile. PW 4 was an Investigating Officer of the case. He collected the viscera of the dead and sent it for forensic examination. PW 5 was a cousin brother of the appellant and the de facto complainant in this case who turned hostile in the course of trial. He went to the extent of denying his signature on the written complain. PW 6 was another co-villager who was declared hostile, but he admitted that he saw the dead body of the victim and did not see the appellant there. PW 7 was another of those co-villagers who turned hostile. In the cross-examination he admitted that he used to work as a day labourer in the house of the appellant. PW 8 was the doctor who conducted the Post Mortem examination on the dead body of the victim. His final opinion was that death was due to cardio- respiratory failure in a case of Phosphamidon poisoning. He proved the F.S.L Report and his final report. He could not fix a time for the death of the child. PW 9 was a co- villager who was declared hostile. PW 10 was the Police Officer who received the complain from PW 5. PW 11 was the star witness of the case. She was the mother of the victim and the wife of the appellant. She is a pre and a post occurrence witness to the gruesome act of administering poison. First, she indicated a motive for the murder. She deposed that when she had conceived for the second time the husband / appellant wanted a male child. She stated that after the child birth the appellant would pick up quarrels by saying that he would kill the daughter and he even alleged that she had got the female child from her father's house. PW 11 deposed that the appellant took the child with him and left the place on that fateful day. He returned after about ten or fifteen minutes with the baby who was then crying. The appellant fled away after handing over the child in the lap of PW 11. The child started vomiting and PW 11 felt a smell of poison. She further deposed that she confronted the appellant who then confessed that he had administered poison to the child. Her brother-in-law also said that the appellant must have administered poison and fled away. They were crying and then the neighbours came there. She narrated the incident to the neighbours and took the baby to the doctor's chamber. She deposed that police recovered a container of poison and seized the same. In her cross- examination, PW 11 admitted that cultivation was done in her in-law's house. They used to purchase poison for using in the field. She stated that she was presently living at the house of her father for about one or one and half years. She admitted that she did not lodge any diary that her husband asked her to withdraw the case. On recall, she deposed that after her daughter had fallen ill, the appellant being accompanied by others brought the child to the doctor's chamber. PW 12 was the first Investigating Officer of the case. He held inquest on the dead body of the infant. He seized one scarf of the decreased and a container of poison under a mango tree in the courtyard. He searched for the accused, but he had fled away. On 10.05. 1998 he arrested the accused. He examined some witnesses. He deposed that PW 11 stated that he could not say as to whether any person administered poison or how the child consumed poison and that the neighbours rushed there and did not allow her and her husband to say anything and attempted to assault the husband. PW 13 was a constable who identified the dead body before the Post Mortem doctor. PW 14 was the second Investigating Officer. He examined some witnesses and finally submitted the charge sheet.
6. In his examination under Section 313 of the Code, the appellant stated that he only wished for a child in response to the PW 11's evidence that he wanted a male child. In respect of PW 11's evidence that the appellant had taken the child away, he stated that he went towards the fields. In response the PW 11's deposition that the child was found vomiting, the appellant said that he could not say anything as he had gone to work in the field.
Submissions at the Bar:
7. Mrs. Kakali Chatterjee, the learned Amicus appointed by this Court to defend the appellant, submits that the prosecution case is based purely on the evidence adduced by the victim's mother PW 11. Her evidence is not corroborated by any of the relations or local witness-PWs 1, 2, 3, 5, 6, 7 and
9. Even the de-facto complainant PW 5 had turned hostile. According to her, it will not be safe to rely on the version presented by PW 11 in the absence of any corroboration whatsoever. She further submits that quite surprisingly the witnesses to the inquest were not examined by the prosecution. According to her, the conduct of the accused in not fleeing from the place of occurrence would enure to his benefit. She submits that there is no clinching evidence that the appellant administered poison to the infant.
8. Mr. Arun Kumar Maity, the learned Additional Public Prosecutor submitted that PW 11's evidence is quite clinching and convincing. It needs no corroboration. The relations and neighbours of the accused might have tried to save the appellant. He submits that the medical evidence clearly corroborates the evidence of PW 11. He also submits that the appellant practically admitted a few things like his presence near the place of occurrence at the relevant time in his examination under Section 313 of the Code. According to him, the prosecution has been able to establish its case beyond all reasonable doubts.
Ratiocination:
9. The present case is based purely on circumstantial evidence. However, except for one, all other relations and locals turned hostile. Therefore, one has to scrutinise the facts and the quality of the evidence with greater circumspection.
Motive, whether made out:
10. Motive assumes a greater significance in a case based purely on circumstantial evidence. The FIR did give an inkling of a motive in as much as the appellant did not keep any relation with the wife and child and even questioned the infant's paternity. But, the FIR was not supported by its maker, who turned hostile. PW 11 clearly deposed that the appellant wanted a male child instead and did threaten to kill her. The appellant, on the other hand, stated under Section 313 of the Code that he only wanted a child. Even if one accepts PW 11's version as true, a mere dissatisfaction in not having a male child and a bald threat to kill the child at some point of time, without any specifics do not necessarily point towards a motive to kill one's child.
FIR maker turned hostile:
11. A First Information Report only sets the criminal law in motion. If its maker turns hostile, it would not have any more adverse effect than on the evidence that the de-facto complainant was going to lead. In any event, except for an alleged extra-judicial confession before the villagers, PW 5 only gave out the version he purportedly heard for the victim's mother PW 11. Inquest witnesses not examined:
12. In this case, there is no contradiction between the inquest report and the post mortem report or for that matter, the medical evidence adduced. Nor is the identity of the dead body in doubt. Although PW 13, a constable did not sign the Inquest Report as a witness, yet he deposed that he saw the inquest that was done by PW 12. In such circumstances, the non- examination of the inquest report witnesses cannot be termed as fatal to the prosecution case.
Evidence of mother of victim and wife of appellant, whether needed corroboration:
13. PW 11 is the star witnesses of this case. She is the hapless mother of the infant and the unfortunate wife of the appellant. True, as per her evidence, the appellant was not staying with her and after the incident, she started living in her maternal home. But, this no ground to presume any animus against the husband. Therefore, when she goes on to depose against her husband for the murder of their child, the same ought to be viewed with utmost seriousness and care. So, it is very important to assay what is the true purport of her evidence. PW 11 appears to be a pre and a post occurrence witness. She deposed that the appellant was not staying with them for very long. Yet, when he approached her to take the child out at 8 am on the fateful day, she simply allowed it. The appellant then came back with the crying child, evidently struck with poison, and left her with PW 11. One might argue, that if the appellant intended to kill the child, he would have left her somewhere to die. Although PW 11 said that the appellant fled away, she admitted in her cross that the appellant accompanied them to the doctor. The conduct of the accused in not fleeing is also quite significant. PW 11 did speak about the appellant confessing his guilt in front of her. That is a thing which one has to decide whether to believe in nor not. In the cross, PW 11 admitted that they used to purchase poison for using in the field. So, poison was available for anyone to administer or even accidentally access. It also appears that if the husband had not been charged with the offence, the onus would have been on PW 11 to explain how the infant had suffered poisoning. In such circumstance, it becomes the necessary to look for a corroboration from an independent source, not necessarily to question PW 11's evidence, but to rule out all reasonable doubts. Turning hostile of relations and neighbours:
14. Witnesses may turn hostile due to multifarious reasons. In this case, the relations of the accused and even the independent villagers turned hostile. This may either be in order to save the accused / appellant or to actually point out what they had not stated to the police. It may also be to redact their statements formulated at or near the spur of the moment on a mistaken or presumptous appreciation of facts. The fact that they do not lend credence to the prosecution story or the evidence adduced by PW 11 does create a reasonable doubt in one's mind about the complete correctness of the prosecution version.
The accused did not flee:
15. A harmonious reading of the evidence of witnesses would suggest that the husband might have gone away immediately after the incident. But, as per PW 11 herself, he came to accompany them and the child to the doctor. Such conduct of the appellant has stood him in good stead.
16. In order to base a conviction and sentence on circumstantial evidence, the chain of circumstances is required to be complete and indubitably point towards the guilt of the accused. Here, the chain appears to be breached at most places.
Conclusion:
17. In view of the above discussions, we do not think that the prosecution has been able to prove its case beyond all reasonable doubts. The appellant is entitled to the benefit of doubt. We, therefore, set aside and reverse the impugned judgement and order of conviction and sentence passed by the learned Trial Court upon the appellant. The appellant, if in custody, shall be forthwith released if his custody is not required in any other case.
18. A copy of the judgement along with the lower Court records may be sent down to the learned Trial Court by Special Messenger forthwith for information and necessary action.
19. Urgent Photostat copies of this judgement may be delivered to the learned Advocates of the parties, if applied for, upon compliance of all formalities.
(Jay Sengupta, J) I agree (Md. Mumtaz Khan, J)