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2020 DIGILAW 344 (CAL)

Marzina Bibi v. State Of West Bengal

2020-03-04

JOYMALYA BAGCHI, SUVRA GHOSH

body2020
JUDGMENT Suvra Ghosh, J. - The appeal is directed against the judgment and order of conviction and sentence dated 03-09-2011 and 05-09-2011 passed by the Learned Additional Sessions Judge, 1st Fast Track Court, Jalpaiguri in Sessions Case No. 221 of 2010. By the judgment and order impugned, the learned trial Court convicted the appellant for offence punishable under Section 302 of the Indian Penal Code, (in short the I.P.C.) and sentenced her to suffer life imprisonment. No fine was however imposed upon the appellant by the learned trial Court. 2. The prosecution case, in a nutshell, is that on 20-11-2007 Subash Tamang lodged written complaint before Bhaktinagar Police Station stating interalia that a mason named Abdul Miyan used to stay with his family in the house of Kamal Pradhan on rent and was engaged in construction work in the house of the complainant who was a neighbour of Kamal Pradhan. On the same day, i.e., 20-11-2007 at about 09:30 A.M. when Abdul did not turn up for his work, he sent another mason Bablu Miyan to the house of Abdul to call him. Bablu returned after sometime and stated that Abdul was lying in bleeding condition. Thereafter the complainant along with other villagers went to the house of Abdul Miyan and found him lying dead drenched in blood. There was mark of injury on his head caused by "kukri" and a "kukri" was lying beside him. Upon interrogation, Marjeena Bibi, wife of the deceased confessed before them that she had murdered her husband on the previous night at about 11/12 P.M. by assaulting him with a "kukri". The incident was then reported at the Police Station. 3. On receipt of written complaint, Bhaktinagar Police Station Case No. 932/07 dated 20-11-2007 under Section 302 of the I.P.C. was registered. On conclusion of investigation, charge sheet was submitted against the accused/appellant under Section 302 of the I.P.C. The appellant was arrested on the date of occurrence of the incident and is in custody till date. 4. The case was committed to the Court of Learned Sessions Judge, Jalpaiguri and subsequently transferred to the Learned Additional Sessions Judge, 1st Fast Track Court, Jalpaiguri for trial. 4. The case was committed to the Court of Learned Sessions Judge, Jalpaiguri and subsequently transferred to the Learned Additional Sessions Judge, 1st Fast Track Court, Jalpaiguri for trial. Upon consideration of the material on record, charge was framed against the accused/appellant under Section 302 of the I.P.C. Substance of accusation was read over and explained to the appellant to which she pleaded not guilty and claimed to be tried. Accordingly, the prosecution examined ten witnesses in support of its case and several documents were marked as Exhibits 1 to 9 series on its side. The accused/appellant refrained from adducing any evidence in support of her defence and her plea, as appears from the trend of crossexamination of witnesses as well as her statement under Section 313 of the Cr.P.C is that of false implication and innocence. 5. In pointing out the contradictions and discrepancies in the case made out by the prosecution, learned advocate for the appellant has submitted that there is no cogent evidence on record that points towards the guilt of the appellant and the conviction is a product of surmise and conjecture. The children of the deceased who were the most vital witnesses to the incident were not examined by the prosecution. The entire prosecution case rests on an extra-judicial confession purportedly made by the appellant which was subsequently retracted by her. Such extra-judicial confession is not corroborated by other evidence on record - either ocular or circumstantial and cannot be safely relied upon. There is variance in the versions of witnesses who reached the place of occurrence after the incident and there is in fact no eye witness to the incident besides the minor children of the victim who were not examined. The evidence on record is too scanty to connect the appellant with the murder of the victim and justice demands extension of the benefit of doubt to the appellant and her acquittal. 6. The State has supported the judgment impugned and has submitted that the dead body of the victim was found in his house where only his wife and three minor children were residing. The "kukri" which is the weapon of offence was found beside the body of the victim and the post-mortem report of the victim supports the manner of assault and nature of injuries inflicted on the victim. The "kukri" which is the weapon of offence was found beside the body of the victim and the post-mortem report of the victim supports the manner of assault and nature of injuries inflicted on the victim. The appellant who was found at the place of occurrence soon after the incident voluntarily confessed before the persons present there that she murdered her husband on the previous night with the "kukri". Though the appellant has retracted from her statement subsequently, the witnesses have unequivocally stated that such confession was made before them voluntarily by the appellant. No enmity or strained relation between the witnesses and the appellant is evident as would cast a shadow of doubt on the version of the witnesses relating to the extra-judicial confession. The charge against the appellant has been proved beyond all reasonable doubt and the conviction should be upheld and the appeal dismissed. 7. In order to determine the guilt of the appellant or otherwise, it is necessary to go through, scan, weigh and discuss the evidence led by the prosecution. 8. Pw-1 Subash Tamang who is the defacto complainant of the case had appointed the victim as a mason for undertaking small construction work in his house and the victim used to reside with his family in the house of Kamal Pradhan who was a neighbour of PW-1 at the relevant time. On hearing the news of Abul Miyan's death, he alongwith Kamal Pradhan and other villagers rushed to the house of the victim and found him lying in a pool of blood. The appellant was outside her room and confessed before them that she had killed her husband with a "kukri". PW-1 is not aware whether the victim used to consume alcohol every night and create a ruckus in the locality. 9. Pw-2 Kamal Pradhan stated that the victim used to stay with his family in the house of his brother-in-law as a tenant and the said house was under custody and control of this witness as the owner was a soldier. PW-2 is a post occurrence witness who found the victim lying in a pool of blood inside the room and his wife Marjeena Bibi sitting outside the room. Marjeena confessed before them that she killed her husband on the previous night as he used to torture her physically every day. This witness is not aware of such torture. 10. PW-2 is a post occurrence witness who found the victim lying in a pool of blood inside the room and his wife Marjeena Bibi sitting outside the room. Marjeena confessed before them that she killed her husband on the previous night as he used to torture her physically every day. This witness is not aware of such torture. 10. Pw-3 and PW-4 did not support the prosecution case and were declared hostile. 11. Pw-5 Maina Bibi who is a day labourer and used to work with the victim had gone to call the victim from his house for work on the relevant date. She saw the dead body of the victim and heard the victim's wife saying that she had killed her husband. 12. Pw-6 Bishal Rai corroborated the version of the earlier witnesses. 13. Pw-7 Bablu Miyan who was a co-worker with the victim went for work with his mother and other labourers to the house of Subash Tamang on the relevant date and found Abdul Miyan absent. The victim's daughter was outside the room adjacent to the work place and stated that her father was sleeping inside the room. On instruction of Subash Tamang PW-7 went to call the victim and saw the incident. He also heard the confessional statement of the appellant. 14. Pw-8 who was posted as a constable at Kalchini P.S. at the material point of time took the dead body to North Bengal Medical College and Hospital for post-mortem examination and caused seizure of the wearing apparel, P.M blood and viscera of the deceased. 15. Pw-9 Dr. R. Prasad is the autopsy surgeon who held post mortem examination of the dead body of the victim and found the following injuries: 1. 2" x 1/2" x bone chop wound over left mandible 1" left lateral from mid-line directed downwards laterally. 2. Chop wound 2" x 1/4" x bone over left zygomatic arch direct left laterally started from a point 1" left lateral from mid-line. 3. Chop wound 2" x 1/4" x skull bone from mid-line to right lateral over right frontal eminence just 4" above the right supra-orbital ridge on removal of scalp there is cut fracture of skull at the corresponding site. 4. Chop wound 3" x 1/4" over the left part parietal eminence directed downwards and forward. 5. 3. Chop wound 2" x 1/4" x skull bone from mid-line to right lateral over right frontal eminence just 4" above the right supra-orbital ridge on removal of scalp there is cut fracture of skull at the corresponding site. 4. Chop wound 3" x 1/4" over the left part parietal eminence directed downwards and forward. 5. Chop wound 2" x 1/4" x bone 1" post to left partial eminence directed post to anteriarly. 6. Chop wound 2" x 1/4" x bone 1" medial to left post parietal eminence directed post to anterior laterally. On dissection of scalp over 4, 5 and 6 there is consinutte fracture of skull 4" x 6" over the left post partial eminence. 7. Chop wound over left ear at midpoint 4" x 1/4" bone divided the external ear in two parts. On dissection, there is blood clot over the left post parietal lobe of brain. 16. The Doctor opined that death was caused due to the aforesaid injuries which were ante mortem and homicidal in nature. 17. Pw-10 is the Investigating Officer who received the written complaint and registered the criminal case. He investigated the case and submitted charge sheet on completion of investigation. 18. On the fateful day, i.e., 20-11-2007, Abdul Miyan was found dead in his rented house and a "kukri" was found lying by his side. The post mortem report of the victim indicates several chop wounds and it is opined that death of the victim was due to the effect of such injuries, ante mortem and homicidal in nature. This confirms the homicidal death of the victim. The moot question for consideration is whether the appellant has any nexus with or is responsible for such homicidal death of the victim. 19. Admittedly the victim used to reside with his wife and three children in a rented house beside that of the defacto complainant. The children of the victim were aged about four years, two years, and six months respectively at the relevant time for which the investigating agency chose not to examine them and record their statement. In all probability, these little children were sleeping happily and peacefully at such wee hours of the night when the incident occurred and little did they suspect that they would have lost their father forever by the time they woke up next morning. In all probability, these little children were sleeping happily and peacefully at such wee hours of the night when the incident occurred and little did they suspect that they would have lost their father forever by the time they woke up next morning. Non-examination of these children by the Investigating Agency does not call for any adverse presumption against the prosecution under Section 114 (g) of the Evidence Act. 20. The incident occurred sometime in the night of 19/20-11-2007 and was discovered the next morning by the co-workers and other inhabitants of the locality. The witnesses who reached the victim's house in the morning and saw the dead body of the victim unanimously stated that the victim's wife/the appellant confessed before them that she had murdered her husband with the "kukri". The appellant prevaricated from her statement subsequently and denied making such confession. She stated in her examination under Section 313 of the Cr.P.C. that her husband used to fight with many people in drunken condition and she had no knowledge as to who murdered him. She has not made any specific allegation against any person with regard to murder of the victim and there is not an iota of evidence within four corners of the record which suggests that the victim had enmity or rivalry with any person who would do away with him. This improbabilizes the plea of an outsider committing murder of the victim in his house. Strangely enough, the appellant did not report the death of the victim to anyone until the same was discovered by the co-workers and neighbours of the victim. The evidence on record is also silent regarding alleged consumption of excessive liquor by the victim and torturing his wife or creating a ruckus in the locality in inebriated condition. 21. The conviction of the appellant is primarily based on her extra judicial confession coupled with circumstantial evidence. The principles for deciding whether an extra-judicial confession can be looked into and can form basis of conviction of an accused as enumerated in Sahadevan v/s State of Tamil Nadu, 2012 CrLJ 3014 (3019) SC are set out: "(i) The extra judicial confession is a weak evidence by itself. It has to be examined by the Court with greater care and caution. (ii) It should be made voluntarily and should be truthful. (iii) It should inspire confidence. It has to be examined by the Court with greater care and caution. (ii) It should be made voluntarily and should be truthful. (iii) It should inspire confidence. (iv) An extra judicial confession attains greater credibility and evidentiary value, if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence. (v) For an extra judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities. (vi) Such statement essentially has to be proved like any other fact in accordance with law." 22. The said principle has also been dealt with in Ram Lal v/s State of Himachal Pradesh, 2018 AIR(SC) 4616 wherein the Hon'ble Supreme Court has observed that "Extra-judicial confession is a weak piece of evidence and the court must ensure that the same inspires confidence and is corroborated by other prosecution evidence. In order to accept extra-judicial confession, it must be voluntary and must inspire confidence. If the Court is satisfied that the extra-judicial confession is voluntary, it can be acted upon to base the conviction." 23. In the present case, the extra judicial confession was made by the appellant before the co-workers and neighbours of the victim when they found the dead body of the victim in the house. No threat or coercion preceded such confession as appears from the record. The appellant who was found sitting outside the room where the victim lay dead appears to have voluntarily confessed before the witnesses that she had murdered the victim with a "kukri". Though she has evasively denied making such statement subsequently, her statement made immediately after the occurrence does not appear to be tainted with falsehood or to be a product of threat or coercion. The witnesses are neither related to the victim, nor had any animosity or interest adverse to that of the appellant which would lead to her false implication. The blood stained "kukri" was recovered from the house of the appellant. The nature of the injuries inflicted upon the victim, as appearing from the post-mortem report suggests that several blows were dealt upon the victim to ensure his death. Such brutal and heinous murder cannot be equated with an unpremeditated act undertaken in a sudden fit of rage. The injuries were inflicted to ensure nothing less than the death of the victim. 24. Such brutal and heinous murder cannot be equated with an unpremeditated act undertaken in a sudden fit of rage. The injuries were inflicted to ensure nothing less than the death of the victim. 24. Also, it is not disputed that the appellant used to ordinarily reside with the victim alongwith their children and it was incumbent upon her to explain the circumstances of unnatural death of the victim. Faint plea of animosity between the victim and outsiders owing to his belligerent nature is most fragile and her desperate effort to wriggle out of the extra-judicial confession by feigning ignorance regarding the cause of homicidal death of her husband is most evasive and self incriminating. These circumstances corroborate the extra judicial confession of the appellant and form a complete chain pointing to the culpability of the appellant. Therefore, it can be safely held that such confession made by the appellant was voluntary and free from any material discrepancy or inherent improbability. The facts and circumstances surrounding the confession tend to support the truth and voluntariness of the confession and the conviction based upon such extra judicial confession does not suffer from any infirmity and may very well be upheld. The only irresistible conclusion that can be drawn up is that the appellant and none else was the perpetrator of the offence and chose to do away with the victim in the dead hours of the night silently but steadily. 25. It is pertinent to mention that the "kukri" was sent for forensic examination and blood was detected on the blade of the "kukri". But the origin and group of the blood could not be determined as the blood was insufficient for the test. However, such failure does not adversely affect the prosecution case which has been otherwise proved beyond reasonable doubt by the extra judicial confession of the appellant coupled with circumstantial evidence. 26. In the said backdrop, I have no impediment to hold that the conviction and sentence imposed on the appellant should be upheld. 27. However, such failure does not adversely affect the prosecution case which has been otherwise proved beyond reasonable doubt by the extra judicial confession of the appellant coupled with circumstantial evidence. 26. In the said backdrop, I have no impediment to hold that the conviction and sentence imposed on the appellant should be upheld. 27. However, bearing in mind the incarceration of the appellant throughout the trial of the case as well as the appeal, I am inclined to hold that though the facts and circumstances of the case as well as the heinousness and gravity of the offence do not call for any leniency towards the appellant, the appellant is at liberty to apply for remission of her sentence under Section 432/433 of the Cr.P.C. upon serving fourteen years of substantive sentence and in the event such application is made, the appropriate Government may consider the same on the anvil of her period of incarceration as well as her conduct while in custody. 28. Cra 563 of 2011 is dismissed. 29. The judgment and order dated 03-09-2011 and 05-09-2011 passed by the Learned Additional Sessions Judge, 1st Fast Track Court, Jalpaiguri in Sessions Case No. 221 of 2010 be affirmed. 30. Copy of the judgment along with L.C.R. be sent down to the trial Court at once. 31. Urgent certified website copies of this judgment, if applied for, be supplied to the parties expeditiously on compliance with the usual formalities. I agree.