Sk. Alimuddin & Anr vs State Of West Bengal
2021 Latest Caselaw 5877 Cal

Form No. J(1)

                        IN THE HIGH COURT AT CALCUTTA
                    CRIMINAL APPELLATE JURISDICTION
                           APPELLATE SIDE
  Present:
  The Hon'ble Justice Joymalya Bagchi
                And
  The Hon'ble Justice Bivas Pattanayak

                                C.R.A. 606 of 2018

                               Sk. Alimuddin & Anr.
                                        -Vs-
                                State of West Bengal


  For the Appellant :           Mr. Mainak Bakshi, Adv.



  For the State :               Mrs. Amita Gour, Adv.


  Heard on          :           30.11.2021

  Judgment on       :           30.11.2021


  Joymalya Bagchi, J. :-

       The appellants had been convicted for murder of a seven year old girl,

  Ashmina Khatun. Ashmina was the daughter of the 1st appellant and the

  2nd appellant was her step-mother. She used to reside with the couple at the

  residence of the 1st appellant in village Kishorechak P.S. Kolaghat.     On
                                       2




07.05.2014

at around 5p.m. it is alleged that the appellants by putting a

pillow on her face smothered her to death. Her mother, Asiran Bibi (P.W. 1),

divorced wife of the first appellant received information over telephone and

rushed to the residence of the appellants on the next date. She lodged first

information report resulting in registration of first information report being

Kolaghat P.S. Case No. 187 of 2014 dated 08.05.2014 under Sections

302/201/34 of the Indian Penal Code and was also present during inquest

over the dead body of the deceased. It is alleged soon after the incident the

appellants had confessed to the villagers about their guilt. During

investigation police seized a pillow which was used to commit the crime. In

conclusion of investigation, charge-sheet was filed and the case was

committed to the Court of Sessions and transferred to the Court of the

Additional Sessions Judge, F.T.C.-II, Tamluk, Purba Medinipur for trial and

disposal of the case. Charges were framed under Sections 302/201/34 of

the Indian Penal Code and the appellants pleaded not guilty and claimed to

be tried. In course of trial prosecution examined thirteen witnesses and

exhibited a number of documents. The defence of the appellants was one of

innocence and false implication. In conclusion of trial learned trial judge by

judgment and order dated 21.08.2018 and 23.08.2018 convicted and

sentenced the appellants, as aforesaid.

Mr. Bakshi, learned Counsel appearing for the appellants argues that

the prosecution case is based on extra-judicial confessions of the appellants

which are not worthy of credence. This vital circumstance is not reflected in

the first information report lodged by P.W. 1 and the evidence of other

witnesses with regard to the so-called extra-judicial confession suffer from

infirmities and/or embellishments. He also submits that the pillow seized by

the police had not been sent for FSL examination. Hence, it cannot be said

with certainty that the pillow was used to commit the crime. He accordingly

prayed for acquittal of the appellants.

On the other hand, Mrs. Gour, learned Counsel appearing for the

State submits that the young child was in the house with the appellants

when she suffered homicidal death. No explanation is forthcoming from the

appellants with regard to the manner and circumstances in which the victim

suffered homicidal death. Explanation offered by the appellant no. 1 with

regard to cause of death is wholly improbabilised by medical evidence (P.W.

11). She prays for dismissal of the appeal.

P.W. 1 is the mother of the deceased. She deposed that the first

appellant was her former husband. He was residing with his second wife i.e.

the second appellant and the minor child. On 07.05.2014 at 4p.m. her

daughter was killed by the appellants by pressing pillow on her mouth. Her

brother informed her about the incident. On the next date she went to the

residence of the appellants and found the body of her daughter. She lodged

complaint with the police which was treated as F.I.R. She signed on the

inquest report as well as on the seizure lists relating to seizure of articles

including the pillow.

P.W. 3 is the cousin of P.W. 1. He has corroborated her evidence. In

addition thereto, he deposed that the appellants confessed their guilty before

him in front of local people.

P.W 5 is the sister of P.W. 1. She corroborated the evidence of P.Ws.

1 and 3. She also claimed that she heard that the appellants had killed the

victim by pressing pillow on her mouth. She was a signatory to the inquest

report as well as on the seizure list prepared in connection with seizure of

the pillow from the house of the appellants.

P.Ws. 6,7,8 and 9 are the neighbours. All of them deposed that the

appellants resided with the child and were present on the fateful night.

PW 6 stated that he heard that the appellant had confessed their

guilt.

PW 7 was another signatory to the inquest report.

PW 8 deposed that initially the appellants blamed one another over

the murder but on the next day they admitted that they had murdered the

victim together.

PW 9 initially deposed that he heard that appellant had confessed

their guilt. Subsequently, he claimed that the confessions were made in his

presence.

PW 11 is the post mortem doctor who held post mortem over the body

of the victim. He noted the injuries on her body and opined that cause of

death was due to the effects of smothering, ante mortem and homicidal in

nature.

PW 12 is the scribe.

PW 13 is the investigating officer of the case.

From the evidence on record, I find that the prosecution has relied on

extra judicial confession made by the appellants that they had pressed pillow

on the face of the deceased victim and smothered her to death. However, on

an analysis of the evidence, I find it difficult to rely on so-called extra judicial

confession for the following reasons.

PW 1, mother of the deceased who had arrived at the spot on the next

day is completely silent with regard to the so-called extra judicial confession

both in her FIR as well as the deposition in court. Evidence of PWs 3 and 9

with regard to extra judicial confession are embellishments as they have not

stated of such fact during interrogation by the investigating officer, PW 13.

Evidence of PW 6 (a neighbour) in this regard is hearsay. Moreover, version

of PW 8 with regard to so-called confession is a contradictory one. Initially,

PW 8 states that the appellants made exculpatory confessions but

subsequently they admitted that they had killed the victim together. Extra

judicial confession is a vital piece of information with regard to the death of

the child, hence its absence in the FIR lodged by her mother is a significant

omission which renders this circumstance improbable. Moreover,

embellished version of the witnesses particularly PW 3 and 9 also does not

inspire confidence. For the aforesaid reasons, I do not choose to rely on the

extra judicial confession as a reliable piece of evidence to implicate the

appellant.

However, even discounting the extra judicial confession, I am of the

opinion the prosecution case is fully established by the fact that there is

ample evidence on record to show that the appellants were present in the

house when the victim girl was murdered. Evidence of doctor, PW 11

discloses extensive external and internal injuries in and around the mouth of

the victim. He opined that the death was due to the effects of smothering,

ante mortem and homicidal in nature. In the face of such evidence disclosing

homicidal of a seven year old child it was incumbent on the appellants to

explain the circumstance leading to such ghastly end. In order to discharge

such onus, appellant no. 1 gave a wholly improbable explanation that the

child had died due to epilepsy. Such explanation is squarely ruled out by the

medical evidence of PW 11, as aforesaid. Appellants were present with the

victim child in the house on the fateful day i.e. on 7.5.2014 at 4 p.m. when

the minor suffered homicidal death. No other person was present in the

house at that time. Explanation offered with regard to the cause of death of

the child by appellant no. 1, namely, epilepsy is a false and incredible one.

These circumstances unerringly point to the guilt of the appellants as the

perpetrators of the crime.

In the light of the aforesaid discussion, I uphold the conviction and

sentence recorded against the appellants.

The appeal is, accordingly, dismissed.

The period of detention suffered by appellant during investigation,

enquiry or trial shall be set off under Section 428 of the Code of Criminal

Procedure.

Copy of the judgment along with LCR be sent down to the trial court at

once for necessary compliance.

Urgent Photostat Certified copy of this order, if applied for, be supplied

expeditiously after complying with all necessary legal formalities.

      I agree



(Bivas Pattanayak, J.)                                  (Joymalya Bagchi, J.)