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2011 Supreme(Cal) 1191
IN THE HIGH COURT OF CALCUTTA
J.N. Patel, And Ashim Kumar Roy, JJ.
Sanjay Das & ors.
Vs.
State of West Bengal
C.R.A. No. 371 of 1999
Decided on : 29.8. 2011
For the Appellants:Mr. P.S. Bhattacharya, Advocate, Mrs. Sukla Das Chandra, Advocate
For the State:Mr. S.G. Mukherjee, Advocate, Mr. Rudradipta Nandy, Advocate
Mere delay in lodging the first information report is not necessarily fatal to the case of the prosecution. However, the fact that the report was lodged belatedly is a relevant fact of which the court must take notice.
Headnote:
CRIMINAL APPEAL - Murder - Section 302 of the Indian Penal Code - Circumstantial Evidence - Delay in lodging FIR - Explanation for delay - Mental imbalance of complainant - Absence of cogent and reliable evidence - Conviction and sentence set aside.
Fact of the Case:
Appellants were convicted for committing murder of their twin daughters under Sections 302/120B/498A/34 of the Indian Penal Code. The prosecution case was that the appellant-accused no.1 got married to Santi Das on the intervention of the villagers, as Santi became pregnant due to physical relationship between them prior to marriage. On getting married she went to reside at her in-law’s place but she was made to stay in a room in the garden of her in-law’s house and was treated with cruelty. She was not given proper food and clothing and subjected to both physical and mental torture.
Finding of the Court:
The court found that the prosecution has failed to establish their case against the appellants-accused beyond reasonable doubt and therefore in absence of any cogent, consistent and reliable evidence it was not proper for the trial Court to have arrived at a conclusion that the appellants-accused are guilty of having committed murder of the two children by administering poison.
Issues: 1. Whether the prosecution has proved beyond reasonable doubt that the appellants-accused committed murder of their twin daughters? 2. Whether the delay in lodging the FIR is fatal to the prosecution case?
Ratio Decidendi: 1. The court held that the prosecution has not been able to establish whether the appellants-accused administered poison to his children. The only persons who were with the children Dolon and Champa at the time of the incident are Santi Das, P.W.1 and her husband Sanjay Das. Santi was admittedly residing with the children in the thatched house of Sanjay Das within Karala Police Station, Polba. 2. The court also held that the delay of 10 days in giving an F.I.R. itself creates doubt in one’s mind. The prosecution has not offered any explanation as to why there was such a delay in lodging of the first information report.
Final Decision: The appeal is allowed. The conviction and sentence of the appellants-accused are quashed and set aside.
J.N. Patel, C.J.
This is an appeal against the judgment and order dated 7.10.1999 passed by learned Additional Sessions Judge, 2nd Court, Hooghly in Sessions Trial No.59/1991 convicting the appellants for having committed offence under Sections 302/120B/498A/34 of the Indian Penal Code and sentencing them to suffer rigorous imprisonment for life for offence under Section 302 read with Section 34 of the Indian Penal Code and to pay a fine of Rs.5,000/- each in default to suffer rigorous imprisonment one year, and sentenced to suffer Rigorous Imprisonment for three years and to pay a fine of Rs.5,000/-in default Rigorous Imprisonment for six months each, for having committed offence punishable under Section 498A of the Indian Penal Code and no separate sentence was passed for having committed offence under Section 120B of the Indian Penal Code. It was further ordered that substantive sentences would run concurrently. The co-accused Sukumar Santra was acquitted of all the charges.
2. The prosecution case is that the appellant-accused no.1 got married to Santi Das on the intervention of the villagers, as Santi became pregnant due to physical relationship between them prior to marriage. On getting married she went to reside at her in-law’s place but she was made to stay in a room in the garden of her in-law’s house and was treated with cruelty. She was not given proper food and clothing and subjected to both physical and mental torture.
3. Three months after the marriage Santi gave birth to twin daughters and they were named as Dolon and Champa. In spite of having delivered children she was compelled to stay in the said room of thatched roof within banana grove commonly known as ‘Kalabagan’ in unhygienic condition. The appellants-accused, Sanjay Das used to stay with his family in pucca room and Santi was not allowed to cook her own meals and was required to daily collect her meal from her mother-in-law, Smt. Pushpa Das.
4. According to the prosecution, on the fateful day i.e. 30.1.1989 in the evening Santi went to take her meal from her mother-in-law, Smt. Pushpa Das and on her return she found her husband standing in the courtyard and her children who were seven month old were not well. One of them was lying still and the other one was having convulsions.
5. On seeing this, her husband left the place on the pretext of getting rickshaw to take them to hospital and did not return. The other members of the family the appellants-accused Bishwajit Das and Smt. Pushpa Das also left the place.
6. On seeing both her children were dead her brother Sankar Santra (PW 2) reported the matter to the police. On receipt of information Sub-Inspector, M.C. Mallick (PW 13) visited the place of occurrence and prepared two inquest reports Exhibits 1 and 2 on registering Polba P.S. U.D. Case No.2/89 dated 30.1.1989. He then despatched the deadbodies for post mortem examination to Chinsurah Sadar Hospital. After 10 days of the incident, a complaint in writing, came to be lodged with the Officer-in-Charge, Polba Police Station, Polba, Hooghly by Santi Das, P.W.1 which was written by Shri Shib Shakti Koley. The complaint was received at police station on 10.2.1989 at 11.30 hours. On the basis of the complaint, police registered F.I.R. Polba Police Station Crime No.14/89 dated 10.2.1989 under Sections 498A/302/120B of the Indian Penal Code and started investigation, recorded the statements of the witnesses and caused arrest of the of the appellants-accused and filed charge-sheet against them for having committed murder of the twin children namely Dolon and Champa.
7. The case was committed to the court of sessions the appellants-accused alongwith Sukumar Santra (paternal uncle of Sanjoy) were charged for having treated Santi with cruelty and thereby have committed offence under Section 498A of the Indian Penal Code and they were further charged for having committed murder by poisoning the two female children of Santi, in furtherance of their common
