Calcutta High Court (Appellete Side)

Jhuma Mondal vs The State Of West Bengal on 5 September, 2024

Author: Tirthankar Ghosh

Bench: Tirthankar Ghosh

                          IN THE HIGH COURT AT CALCUTTA
                            CRIMINAL APPELLATE JURISDICTION

Present:

The Hon'ble Justice Tirthankar Ghosh

                               C.R.A. 628 of 2019

                                Jhuma Mondal
                                      versus
                            The State of West Bengal

For the Appellant         : Mr. Abhinaba Dan
                            Ms. Anikita Mukherjee

For the State             : Mr. Ranbir Roy Chowdhury
                            Mr. Mainak Gupta

Reserved On           :      21.08.2024.

Judgement On          :      05.09.2024

Tirthankar Ghosh, J. :

The present appeal has been preferred against the judgment and order of

conviction and sentence passed by the Learned Sessions Judge, Bankura in

connection with Sessions Trial No. 18 of 2018 arising out of Sessions Case No.

227 of 2018, wherein the Learned Trial Court was pleased to hold the appellant

guilty under Section 304(II) of the Indian Penal Code and sentenced her to

suffer rigorous imprisonment for 7 (seven) years and to pay a fine of Rs.

5,000/- in default to suffer rigorous imprisonment for 6 (six) months.

Bankura Police Station case No. 76/2018 dated 25.02.2018 was registered

for investigation under Section 302 of Indian Penal Code, on the basis of a

complaint submitted by Dr. Jagat Jyoti Bhunia, Medical Officer, Bankura

Sammilani Medical College and Hospital attached to SNCU Ward. The

allegation made in the complaint were to the effect that during morning census

on 25.03.2018, one baby was found missing from step down ward at about

8.00 A.M. The mother of the missing baby was identified as Jhuma Mondal.

The baby was admitted on 24.03.2018 at about 10.57 A.M. on day one of life

because of mild umbilical bleeding. As the baby was stable she was shifted to

step down ward for being with the mother. At 8.00 A.M. on interrogation in

presence of police she confessed of having thrown the baby through window of

bathroom inside SNCU. The baby was recovered from drain at about 9.10 A.M.

by the hospital personnel. As such he requested the M.S.V.P., B.S.M.C. & H

Bankura to do the needful.

On receipt of the complaint submitted by Dr. Jagat Jyoti Bhunia, Medical

Officer of SNCU, B.S.M.C & H Bankura, the Officer-in-Charge of Bankura

Police Station registered the case and endorsed the case to Sub-Inspector of

Police, Baranasi Layek. The investigating officer on conclusion of investigation

submitted charge-sheet before the Learned C.J.M., Bankura under Section 302

of Indian Penal Code. Learned Magistrate was pleased to take cognizance of the

offence and after complying with the relevant provisions of law committed the

case to the Learned Sessions Judge, Bankura. The learned Sessions Judge,

Bankura after taking cognizance of the offence was pleased to transfer the case

to his personal file and on 03.08.2018 was pleased to frame charge under

Section 302 of the Indian Penal Code against the accused/appellant Jhuma

Mondal. The contents of the charge were read over to the accused who pleaded

not guilty and claimed to be tried.

The prosecution in order to prove its case relied upon seventeen (17)

witnesses which included P.W.1, Dr. Jagat Jyoti Bhunia, complainant- Medical

Officer of BSMC&H attached to SNCU Ward; P.W.2, Soma Mazumder, Staff

Nurse (GNM) at SNCU Ward Bankura; P.W.3, Shankari Sahana, Staff Nurse

who was engaged on 24.03.2018 at 'A' block of SNCU Ward; P.W.4, Dr. Rabi

Adhikari, Medical Officer of SNCU Ward who was engaged between 9.00 P.M. to

9.00 A.M. on 24.03.2018; P.W.5, Jayashree Jana, Staff Nurse posted at SNCU

'B' Ward from 8.00 P.M. to 8.00 A.M.; P.W.6 Chhaya Murmu, Deputy Nursing

Superintendent, BSMC&H Bankura; P.W.7, Dr. Damodar Chakraborty, Medical

Officer at SNCU Ward under BMSC&H, Bankura; P.W.8, Partha Sarathi

Bhunia, Medical Officer at SNCU Ward under BMSC&H Bankura; P.W.9,

Padma Bauri, permanent employee, serving as a 'Dom' at BSMC&H, Bankura;

P.W.10 Dr. Bipasha Dutta, Medical Officer at SNCU Ward, BSMC&H, Bankura;

P.W.11, Mohan Chandra Orang, Constable attached to Bankura Police Station;

P.W.12, Ranjit Kumar Paine, ASI of Police who prepared the case report;

P.W.13, Sri Pradyut Kr. Sarkar, Sub-Inspector of Bankura Police Station who

prepared the formal FIR; P.W.14, Barun Kumar Roy Facility Manager,

BSMC&H, Bankura; P.W.15, Sanjoy Mondal husband of accused/appellant;

P.W.16, Dr. Tanay Mohanta, Post-mortem doctor; P.W. 17 Baranasi Layek,

Investigation Officer of the case.

P.W.1, Dr. Jagat Jyoti Bhunia was the Medical Officer of Bankura

Sammilani Medical College and Hospital attached to SNCU Ward who deposed

that on 24.03.2018 he was engaged in the same Hospital and on the morning

of 25.03.2018 he submitted a letter addressed to MSVP, BSMC&H Bankura

informing that Soma Majumdar, Sister at SNCU Ward reported about a missing

baby of mother Jhuma Mondal. On 24.03.2018 Jhuma Mondal's baby, a girl

child, aged one day was admitted at the SNCU Ward with mild umbilical

bleeding under Dr. Abhay Charan Pal. According to the prevailing norms of the

hospital whenever the baby was admitted at the SNCU Ward, his or her mother

is also required to be admitted at the Gynae Ward of the hospital. In this case

the condition of the baby was stable and she was handed over to the mother

Jhuma Mondal at the step down Ward. The step down Ward is situated within

the SNCU Ward where the stable babies are allowed to be breast fed by the

mother. It is a norm to count the head of babies at the SNCU Ward once at

8.00 P.M. at night before handing over the charge by the sister and again at

8.00 A.M. when the charge is handed over by the sisters of the Ward and two

census of the child are conducted in SNCU Ward of the hospital at 12.00 noon

and 12.00 midnight. In the present case the child of Jhuma Mondal was found

present at the SNCU during the head count at night, while in the morning at

8.00 A.M. at the time of the delivery of the charge by the sister on counting, a

child was found short and the baby of Jhuma Mondal was not found. He

informed the matter to MSVP at first over telephone and then through letter

about the missing child. He identified the letter which was written and signed

by him, the same was admitted in evidence. It was also stated simultaneously

in the treatment sheet of Jhuma Mondal's daughter and the same was

recorded in his handwriting. He also identified the treatment sheet which was

in his own handwriting and contained his signature and as such the same was

admitted in evidence. The witness also stated that information was also sent to

the Ward Master's office and Jhuma Monadal was asked about the

whereabouts of her daughter by the employees of the Ward Master's office.

When the accused Jhuma Mondal was asked about the whereabouts of her

baby by the employees she disclosed that she had thrown her baby outside

through the window of SNCU of the hospital. The baby was recovered by those

employees from a drain and brought back to SNCU. He examined the baby and

found that she was brought dead and he declared her as clinically dead. He

identified the accused Jhuma Mondal in Court. In cross-examination the

witness replied that it is usual to mention in the BHT when the baby is handed

over to the mother at the step down Ward and in this case at the time of

admission of the baby it was not found in a serious condition so the baby was

handed over to the mother at step down Ward from the very beginning. It was

further replied by him in cross-examination that the baby was never separated

from the mother to some other Ward. He denied the incident of Jhuma Mondal

not having confessed before the hospital staff that she had thrown away the

baby through the bathroom window from SNCU.

P.W.2, Soma Mazumder is a Staff Nurse (GNM) at SNCU of Bankura

Medical College. She deposed that she was engaged at the night shift from 8.00

P.M. to 8.00 A.M. on 24.03.2018 and at night after counting process of baby

was completed, she took charge of the step down Ward where mother and baby

are kept together. At the relevant time there were 36 mothers and 36 babies.

She also checked the admission procedure of babies before they are shifted to

two other Wards. According to her the place of keeping the babies after

admission is known as 'Triage'. She deposed another census of the babies were

conducted at the midnight and even during that count the number of mothers

and babies they found to be in order. Before her shift/duty was about to end at

about 7.00 A.M. while counting the number of babies she found one baby and

mother were missing, she informed the P.W.1, Dr. Jagat Jyoti Bhunia, the on

duty Medical Officer and she also informed the Nursing Superintendent Madam

and Ward Master Office. At about 7.30 A.M. the mother as well as other family

members of the baby came to the hospital and started inquiry about the

missing baby and after some time the accused Jhuma Mondal, mother of the

baby confessed that she had thrown the baby through the window. On further

enquiry and on her indication the employees of the hospital found the baby

from a drain nearby. The baby was brought to the SNCU Ward and examined

by the Medical Officer Dr. Bhunia, who declared the baby dead. The baby was

thereafter kept in death cot. She identified the accused in Court and further

stated that they wanted to know from the accused why she had done such

thing, when she replied that as the baby was a female child, she had thrown

out. In cross-examination she replied that the baby was not suffering from

serious illness or that the baby was not given to the custody of the mother she

also denied in cross-examination regarding Jhuma Mondal not having

confessed to them regarding throwing away the baby through the bathroom

window.

P.W.3, Shankari Sahana is a Staff Nurse at Bankura Sammilani Medical

College and Hospital and was engaged in night duty as staff nurse at 'A' block

of SNCU Ward of Bankura Medical College. She stated that there are four unit

at SNCU Ward and when she went to hand over the charge after her duty on

25.03.2018 she heard that a baby was missing from the step down Ward of

SNCU 'D' unit. The mother of the baby Jhuma Mondal confessed in presence of

many people including her that she had thrown the baby out from the window

of the bathroom. On identifying the bathroom from where the baby had been

thrown, search was made and the baby was recovered from region below the

window, from a drain. The baby was kept on the death cot after recovery at

SNCU unit and the mother of the baby disclosed that it was a female child, so

she had thrown away the child. She identified the accused Jhuma Mondal as

the mother of the baby. In cross-examination she denied the fact of not having

stated regarding the incident to the police officer who examined her and also

that the baby was recovered shortly after the mother confessed about throwing

out the baby.

P.W. 4, Dr. Rabi Adhikary, Medical Officer, at SNCU Ward at BSMC&H,

Bankura, who deposed that on 24.03.2018 he was engaged at the Ward from

9.00 P.M. to 9.00 A.M. Doctor Jagat Joyti Bhunia was also on duty along with

him at the same Ward. On 25.03.2018 between 7.30 A.M. to 8.00 A.M. the

baby of Jhuma Mondal was found missing according to the witness, at the time

of counting of babies by the sister of the Ward. He was in the 'A' unit of the

Ward and the incident took place in the step down Ward of 'D' unit. The baby

was found missing, the mother was identified by the sister and then

whereabouts of the baby was enquired from her, she was unable to give any

answer and on being questioned by several persons she disclosed in his

presence that she had thrown away the baby from window of a bathroom by

the side of the Ward. Dr. Bhunia informed about this matter to the Ward

Master, RMO, MSVP and Police. The baby was recovered from the drain below

the bathroom window and he learnt from Dr. Bhunia that the baby had been

recovered in dead condition. He identified the accused in Court. In cross-

examination he replied that the SNCU Ward is situated at the first floor of the

building and the Gynae Ward is situated in the ground floor and second floor of

the building. He denied in cross-examination that Jhuma Mondal did not state

that she had thrown her baby through the bathroom window. He further stated

in his cross-examination that the baby was recovered at about 9.00 A.M. on

25.03.2018.

P.W. 5, Jayashree Jana, attached Staff Nurse at BSMC&H, Bankura at

SNCU Ward who deposed that she was posted at 'B' Ward from 8.00 P.M to

8.00 A.M. on 25.03.2018. She deposed at the time of handing over of charge,

after completion of her duty on 25.03.2018 she learnt that one baby of SNCU

'D' unit was missing. Soma Majumder was performing duty at SNCU Ward 'D'

unit from 8.00 P.M. on 24.03.2018 to 8.00 A.M. on 25.03.2018. She informed

about the matter to the Deputy Nursing Superintendent in charge of her Ward.

She further deposed that Jhuma Mondal the mother of the missing baby was

called and she was not present in the step down Ward and was found at the

gate of SNCU. On being asked the mother made inconsistent statement at first

and then disclosed that since she gave birth to female child she had kept the

baby by the side of the window and at times she said that she had thrown

away the baby. On search, the missing baby of Jhuma Mondal was found from

a drain by the side of the window and the baby was found dead on being

examined by the doctor. She identified accused Jhuma Mondal in Court. In

cross-examination she denied the fact that she stated to the Police that on the

following day Padma Dom recovered the baby from the drain and brought it

out. She also denied of having stated to the police that the mother of the baby

was not in the Ward and she was near the gate.

P.W.6, Chhaya Murmu, is a Deputy Nursing Superintendent, BSMC&H,

Bankura and on 25.03.2018 she was posted in same place. At about 8.30 A.M.

to 9.00 A.M. on 25.03.2018 at the time of handing over of the charge, she was

informed by Soma Majumdar, Nursing Staff, from gynae and SNCU Ward that

a baby was found missing. After receiving such information she went to SNCU

Ward and asked Jhuma Mondal, mother of the missing baby why the baby was

missing when it was given to her custody at step down Ward. According to the

witness the accused Jhuma Mondal confessed after sometime that since she

gave birth to a girl child so she killed her. According to the witness the accused

showed the window of the bathroom from where the baby was thrown. The

baby was recovered from the drain below the window and on examination the

doctor of the Ward declared her to be dead. She identified the accused Jhuma

Mondal in Court. In cross-examination she denied the fact of not asking

Jhuma Mondal regarding whereabouts of her baby as also she denied

regarding disclosing the fact that the accused confessed before her that she

had thrown away the baby through the window.

P.W.7, Dr. Damadar Chakraborty, Medical Officer at SNCU Ward under

BMSC&H, Bankura. He deposed on 25.03.2018 he was performing morning

duty from 9.00 A.M. at SNCU 'A' Ward and was handed over the charge from

Dr. Jagat Joyti Bhunia and Dr. Rabi Adhikary who were on duty on the

previous night. He learnt from Dr. Bhunia and Dr. Adhikary that a baby was

missing from the step down Ward from the custody of a mother and later on

the baby was recovered from the drain below the SNCU Ward. He also deposed

that he was busy with his duty and did not see the recovered baby and Dr.

Bhunia and Dr. Adhikary were doing the necessary work. In cross-examination

he deposed that he could not recollect from whom he heard regarding the

incident.

P.W.8, Partha Sarathi Bhunia is Medical Officer of SNCU Ward, BMSC &

H, Bankura. He deposed that on 25.03.2018 he was on duty at the 'Triage'

from 9.00 A.M. He further deposed that during the previous night Dr. Bhunia

and Dr. Adhikary were on duty at SNCU Ward and he learnt from them that

one baby was missing from the step down Ward at the time of head counting

by sister in the morning. It was also informed to him that the mother of the

missing baby Jhuma Mondal was traced out who confessed that she threw the

baby from the window of the bathroom. The baby was recovered below the

bathroom window and declared dead at the SNCU Ward. Later on he continued

with his work at 'Triage'. In cross-examination he deposed that in the 'Triage'

babies were given emergency medical attendance and they are shifted to their

respective Wards after primary care. He further replied in cross-examination

that he is unable to inform the Court under which doctor the deceased baby

was admitted first at the 'Triage' or under which doctor she was undergoing

treatment.

P.W.9 is Padma Bauri who was a permanent employee, serving as a Dom

at SNCU Ward under BSMC&H, Bankura, who deposed on 25.03.2018 at

about 8.30 A.M. she was called to the SNCU Ward from the Ward Master's

Office. The doctor, sister and Ward master asked her to look for a baby in the

drain on the back side of the SNCU Ward. She looked for the baby and traced

it out from the drain below the SNCU Ward. According to the witness the baby

was taken to the Ward and after police arrived she was taken to the morgue of

the hospital.

P.W.10, Dr. Bipasha Dutta, Medical Officer at SNCU Ward, BSMC&H,

Bankura who deposed that on 25.03.2018 she reported for her duty at SNCU

Ward at about 9.00 A.M. According to her on the previous night, Dr. Rabi

Adhikary and Dr. Jagat Jyoti Bhunia were on duty at SNCU Ward along with

Sister, Soma Majumdar and at the time of taking charge, Dr. Jagat Jyoti

Bhunia informed her that the baby was missing from the Ward since 8.00 A.M.

The baby was recovered before she joined for her duty in morning from the

drain and she was unable to recollect as to whose baby was missing. In cross-

examination she deposed that she did not notice the baby or the mother after

reporting for duty.

P.W.11 is Mohan Chandra Orang, a Constable attached to Bankura Police

Station who on 25.03.2018 took the body of the baby to the morgue at

Bankura. The challan according to him was prepared by ASI Ranjit kr. Paine.

His signature in carbon impression was admitted in evidence. After the post-

mortem he produced the clothes of the baby at the Police Station which was

seized from his possession and he signed the seizure list. He identified his

signature in the seizure list which was admitted in evidence.

P.W.12, Ranjit Kumar Paine was posted as ASI of Police at Bankura Sadar

Police Station and on 25.03.2018 he conducted the inquest over the dead body

of a new born baby of Jhuma Mondal at the compound of BSMCH, Bankura.

He identified the carbon copy of the inquest report prepared by him which was

admitted in evidence. He further deposed that he sent the body to the morgue

for post-mortem examination and the copy of dead body challan with his

signature. He identified his signature which was marked in evidence. He also

identified the seizure list relating to the seizure of wearing apparels of the

deceased baby which he signed as a witness, he identified his signature and

the same was admitted in evidence. In cross-examination he replied that he

found the dead body of the deceased baby in the bed of SNCU, BSMC&H,

Bankura and was unable to recollect the bed number where the body was laid.

He further deposed that Jhuma Mondal was present at the time of inquest

examination.

P.W.13, Pradyut Kumar Sarkar, Sub-Inspector of Bankura Sadar Police

Station who prepared the formal FIR in connection with Bankura P.S. Case No.

76/18 dated 25.03.2018 under Section 302 of IPC. He deposed that he filled up

the FIR as per instruction of the Inspector-in-Charge Bankura Police Station

and he identified his signature in the formal FIR which was admitted in

evidence. He also identified the endorsement which was also admitted in

evidence.

P.W.14, Barun Krmar Roy, is Facility Manager, BSMC&H, Bankura. He

deposed that 25.03.2018 police personnel visited BSMC&H Bankura and

conducted inquest on the dead body of a deceased baby of Jhuma Mondal. He

signed the inquest report as witness and identified his signature in the carbon

copy of the inquest report which was marked in evidence. In cross-examination

he replied that he did not personally see how the said baby died.

P.W.15, Sanjoy Mondal is the husband of the accused Jhuma Mondal. He

deposed that his wife gave birth to a female child on 25.03.2018 in their house

and immediately thereafter the child was admitted in Amarkannan Rural

Hospital and thereafter the child was admitted at BSMC & H, Bankura on the

said date. His wife was with the child at the relevant time and the child was

admitted in SNCU Ward, BSMC & H, Bankura. He was waiting in the area of

BSMC&H Ward, Bankura and on the next day morning at about 8.00 A.M. his

wife came to him when both of them took tea and after sometime they went to

SNCU Ward and found that the baby was not in the bed. Both of them along

with staff of the hospital tried to search out the baby and after sometime he

heard the baby was lying in the drain, thereafter, the baby was brought to the

said Ward and found to be dead. He identified the inquest report as well as

signature therein which was admitted in evidence. In cross-examination, he

replied that he did not state anything to police personnel who conducted and

prepared inquest report.

P.W.16 is Dr. Tanay Mohanta who is an Assistant Professor of BSMC&H,

of SNCU Ward. He stated that on 25.03.2018 he conducted post-mortem

examination on the body of one day old child of Jhuma Mondal. The body was

brought by Constable Mohan Chandra Orang of Bankura Police Station in

connection with Bankura P.S. U.D. case no. 191/18 dated 25.03.2018, on

examination he found the following injuries:

"1. Abrasion ½" x ½" present over the chin.

2. Contusion 0.7" x 0.2" over left knee joint.

3. Contusion ½" x 0.3" over right knee joint.

4. Recent tear marks over umbilicus.

On dissection,

5. Sub-Dural haemorrhage over both parietal lobe size 3" x 3"

6. Multiple bruise present over under surface of the liver.

All the injuries showed evidences of vital reactions. No other internal or external injuries present even after careful dissection and examination with the help of a magnifying hand lance.

My opinion regarding cause of death, the death was due to the effects of ante-mortem injuries as noted above."

According to him the cause of death was due to the effects of ante-

mortem injuries. He identified the post-mortem report which was prepared and

signed by him which was admitted in evidence and also deposed that if

anybody throws away a baby from second floor, such type of injuries may

occur to the body of a baby.

P.W.17, Baranasi Layek, Sub-Inspector of Bankura Police Station and the

investigating officer of the case who deposed the chronology in which he

conducted the investigation after the same was endorsed to him. He stated that

he contacted the complainant Dr. Jagat Jyoti Bhunia, visited the place of

occurrence as per his identification and also visited the place where the new

borns are kept in BSMC&H, Bankura. He prepared rough sketch maps of two

places of occurrences with index. He also examined available witness after

complying with all the legal formalities and arrested the accused Jhuma

Mondal. He also seized the wearing apparels of the victim baby on 25.03.2018

under proper seizure list. He collected the post-mortem report of the victim

baby, B.H.T. papers and inquest papers and thereafter submitted charge-sheet

against the accused Jhuma Mondal under Section 302 of the Indian Penal

Code. In cross-examination when the Investigating Officer was confronted

regarding the statement made by some of witnesses he replied as follows:

"Soma Majumdar stated before me that in the previous night when she counted the number of babies in the ward, she did not find the victim baby therein.

She did not state before me that she narrated the incident to Jagatjyoti Bhunia for the first time.

She did not state before me that after narrating the incident to Jagatjyoti, she narrated the incident to the Nursing Superintendent and Ward Master.

She did not state before me that Jhuma Mondal told her and other members of Jhuma's family that she had thrown away the baby. Shankari Sahana did not state before me that Jhuma confessed before her that she had thrown away the baby from window. Dr. Rabi Adhikary told before me that he came to know that on the night of 24.3.18 the baby of Jhuma Mondal was missing He stated before me that on the next day one Padma Dom brought the dead body of the said baby from the drain and kept in the cot for the said baby.

Jayashri Jana told before me that on 24.3.18 she was on duty at Gynae ward and received an information that one baby was missing from first floor.

She stated that on the next day, Padma Dom brought the baby from the drain.

She did not state before me that the mother of the baby was not in the ward and she was standing in the gate.

Chhaya Murmu did not state before me that she enquired the matter from Jhuma.

Chhaya Murmu did not state before me that Jhuma Mondal confessed before her that she had thrown away the baby through the window. She did not state before me that Jhuma Mondal showed her the window through which she had thrown the baby away. Partha Sarathi Bhunia did not state before me that the baby was found missing at the time of counting in the morning.

He did not state before me that Jagatjyoti Bhuinia and Dr. Rabi Adhikary disclosed that mother of the baby confessed before them that she had thrown away the baby from the window of SNCU ward".

Learned Advocate appearing for the appellant submitted that the

prosecution has only relied upon specific set of witnesses who are associated

with the Hospital and have tried to forcefully implicate the present appellant. In

fact, there are no eye-witnesses to the incident neither there is any case of

circumstantial evidence and the whole case is based on extrajudicial confession

of the appellant which is not even corroborated by any materials or

independent witnesses. Additionally, it has been submitted that there are

material discrepancies in the evidence of the prosecution witnesses which

dilutes the allegations, so far as the appellant is concerned and if the

deposition of the prosecution witnesses are read in between the lines then in

that case it would be transparent that the prosecution has failed to prove the

case beyond reasonable doubt. As such the learned advocate submits that the

appellant be acquitted of the charges by setting aside the judgment and order

of conviction and sentence passed by the learned Trial Court.

Mr. Ranabir Roy Chowdhury learned advocate appearing for the State on

the other hand submitted that the prosecution witnesses consistently stated

that the appellant confessed before them that she had thrown the child

through the window of the bathroom and the recovery of the child beneath the

window and from the drain by Padma Bauri (P.W.9) itself goes to show that it

was at the instance of the appellant the child was recovered. According to the

learned advocate the behaviour of the mother/appellant was unnatural as she

was not there at the bed and was having tea with her husband which

substantiates the motive which has been spelt out by the prosecution i.e. a

female child being born second time she had thrown away the child. Learned

advocate for the State submits that the prosecution has been able to prove the

case beyond all reasonable doubt as the version of the prosecution witnesses

have been consistent and there is no alternative factual aspect which can be

arrived at in the given set of circumstances which can exonerate the appellant

from the charges for which she was called upon to face the trial. So, it has been

prayed on behalf of the State that no interference is called for in respect of the

judgment and order of conviction and sentence passed by the learned Trial

Court and the same may be affirmed.

I have considered the deposition of all the witnesses as also the

submissions advanced by the appellant and the State. On an analysis of the

list of witnesses it is reflected that out of the 17 witnesses so relied upon by the

prosecution 12 witnesses are from the hospital, 4 witnesses belong to the

Police Department and the only witness (P.W.15) is the husband of the

appellant. Before proceeding further it would be relevant to state that the

prosecution in this case has mainly built up their foundation on the confession

made by the appellant before the hospital staff, as such the principles which

deal with extrajudicial confession is required to be considered. In Sunny

Kapoor -versus- State of (UT of Chandigarh), (2006) 10 SCC 182 the Hon'ble

Supreme Court by relying upon the judgment of Jaswant Gir -versus-State of

Punjab (2005) 12 SCC 438 held that the first and foremost aspect which has to

be assessed in case of extrajudicial confession is that whether there was an

intimate relation or friendship existing for divulging the information to the

witnesses concerned. In Ajay Singh -versus- State of Maharashtra, (2007) 12

SCC 341, the Hon'ble Supreme Court while dealing with extrajudicial

confession observed that the Court has to satisfy that the same was voluntary

and without any coercion and undue influence. It further reiterated in the

same judgment that extrajudicial confession can form basis of conviction if

persons before whom it has been stated are unbiased and not even remotely

inimical to the accused. Where there is material to show animosity, Court has

to proceed cautiously and find out whether confession like any other evidence

depends on veracity of witness to whom it is made. In State of U.P. -Versus-

M.K. Anthony, (1985) 1 SCC 505 the Hon'ble Supreme Court in paragraph 15

observed as follow:

"15. There is neither any rule of law nor of prudence that evidence furnished by extrajudicial confession cannot be relied upon unless corroborated by some other credible evidence. The courts have

considered the evidence of extrajudicial confession a weak piece of evidence. (See Jagta v. State of Haryana [(1974) 4 SCC 747, 752 :

1974 SCC (Cri) 657, 662 : (1975) 1 SCR 165, 170 : 1974 Cri LJ 1010] and State of Punjab v. Bhajan Singh [(1975) 4 SCC 472, 476 : 1975 SCC (Cri) 584, 588 : (1975) 1 SCR 747, 751 : 1975 Cri LJ 282] .) In Sahoo v. State of U.P. [AIR 1966 SC 40 : (1965) 3 SCR 86 : 1966 Cri LJ 68] it was held that "an extrajudicial confession may be an expression of conflict of emotion, a conscious effort to stifle the pricked conscience; an argument to find excuse or justification for his act; or a penitent or remorseful act of exaggeration of his part in the crime".

Before evidence in this behalf is accepted, it must be established by cogent evidence what were the exact words used by the accused. The Court proceeded to state that even if so much was established, prudence and justice demand that such evidence cannot be made the sole ground of conviction. It may be used only as a corroborative piece of evidence. In that case, the evidence was that after the commission of murder the accused was heard muttering to himself that he has finished the deceased. The High Court did not interfere with the conviction observing that the evidence of extrajudicial confession is corroborated by circumstantial evidence. However, in Piara Singh v. State of Punjab [(1977) 4 SCC 452 : 1977 SCC (Cri) 614 :

(1978) 1 SCR 597 : 1977 Cri LJ 1941] this Court observed that the law does not require that evidence of an extrajudicial confession should in all cases be corroborated. It thus appears that extrajudicial confession appears to have been treated as a weak piece of evidence but there is no rule of law nor rule of prudence that it cannot be acted upon unless corroborated. If the evidence about extrajudicial confession comes from the mouth of witness/witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive for attributing an untruthful statement to the accused, the words

spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it, then after subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, if it passes the test, the extrajudicial confession can be accepted and can be the basis of a conviction. In such a situation to go in search of corroboration itself tends to cast a shadow of doubt over the evidence. If the evidence of extrajudicial confession is reliable, trustworthy and beyond reproach the same can be relied upon and a conviction can be founded thereon."

Thus, the proposition of law which emerges in respect of acceptance

relating to evidentiary value of extrajudicial confession, depends upon the

veracity of the witnesses to whom it is made and to decide on the acceptability

of the evidence having regard to the credibility of the witnesses. Needless to

state that extrajudicial confession by its nature is a weak piece of evidence.

Having considered the aforesaid in the background of the present case

particularly with respect to the deposition of P.W.1- Dr. Jagat Jyoti Bhunia,

P.W.2- Soma Mazumder, P.W.3- Shankari Sahana, P.W.4- Dr. Rabi Adhikary,

P.W.5.- Jayshree Jana, P.W.6.- Chhaya Murmu who in their deposition before

the Court narrated that the appellant on being repeatedly asked by several

persons confessed before them that she had thrown away the baby from the

window of the step down Ward of B.S.M.C. & H, Bankura. It is seen that all

these witnesses are either the doctors, the staff nurse or the Deputy

Superintendent associated with SNCU Ward of B.S.M.C. & H, who were

responsible for their duties at the relevant point of time when the child along

with mother was at the hospital.

Surprisingly in this case although in evidence it has surfaced that at the

Step down ward there were 36 mothers along with their babies but the police

authorities did not examine any of those mothers who were present in the unit

where the appellant along with her baby was admitted. The lone independent

witness after all is the husband of the appellant who did not support the

prosecution case. What is much more alarming is the improvement made by

the witnesses before the Court who were associated with the hospital as the

investigating officer categorically deposed in cross-examination that PW2, Soma

Majumdar stated before him that in the previous night when she counted the

number of babies in the ward she did not find the victim baby therein. In the

same breath, in respect of PW2, Soma Majumdar the investigating officer

deposed that PW2 did not state before him that the appellant Jhuma Mondal

told her and other members of her family that she had thrown away the baby.

The investigating officer further in respect of PW3 Shankari Sahana, staff nurse

deposed that the said witness i.e. PW3 did not state before him that the

appellant confessed before her that she had thrown away the baby from the

window. The investigating officer further deposed that PW4, Dr. Rabi Adhikary

told him that he came to know that on the night of 24.03.2018 the baby of

Jhuma Mondal was missing. The investigating officer also deposed that PW5

Jayasree Jana, staff nurse stated before him that on 24.03.2018 while she was

on duty at Gynae ward she received an information that a baby was missing

from first floor. The investigating officer further deposed that PW5 did not state

before him that the mother of the baby was not in the ward and she was

standing in the gate. The investigating officer also before the Court in cross-

examination deposed that PW6, Chhaya Murmu, Deputy Nursing

Superintendent did not state before him that Jhuma Mondal confessed before

her that she had thrown away the baby through the window and that the

appellant Jhuma Mondal showed her the window from where she had thrown

the baby. In respect of PW8, Partha Sarathi Bhunia, Medical Officer of SNCU

ward the investigating officer deposed that he did not state before him that the

baby was found missing at the time of counting in the morning and that Dr.

Jagat Jyoti Bhunia and Dr. Rabi Adhikary disclosed that mother of the baby

confessed before them that she had thrown away the baby from the window of

SNCU Ward.

On scrutiny and assessment of the aforesaid evidence it can be

ascertained that there is a gulf of difference in respect of the statement made

before the investigating officer by the aforesaid witnesses and their deposition

in Court. All the witnesses were in discharge of their official duties at the

relevant point of time in the hospital and they have improved their version in

Court (if it is compared with their previous statement). To rely upon their

evidence and arrive at a conclusion would be against the settled proposition of

criminal jurisprudence as the reliability of these witnesses are questionable.

Thus the prosecution case if taken as a whole suffers from the following defects:

(i) An attempt was built to establish the case on extrajudicial

confession which itself is a weak piece of evidences;

(ii) Such narration regarding the confession was first time deposed

before the Court and was not divulged in course of investigation as

is reflected from the deposition (reply in cross-examination) of the

investigating officer;

(iii)The relevant witnesses who could have supported the prosecution

case particularly the other patients/mothers who were admitted in

the same ward were not cited as prosecution witnesses to make out

a chain of circumstance for implicating the appellant in a criminal

case;

(iv) The extrajudicial confession has not been corroborated by any

material particulars or by way of any independent evidence for

implicating the present appellant;

(v) Even if the extrajudicial confession is accepted to be true then also

the same cannot be relied upon as majority of the witnesses have

for the first time before the Court spoke of such confession being

made without the same being disclosed in course of investigation to

the investigating officer;

(vi) A set of the witnesses deposed that in the previous night while

counting one of the babies were found to be short, while another

set of witnesses stated/deposed that in the morning at 8.00 A.M.

on 25.03.2018 while counting a baby was found to be missing.

Having regard to the inherent factual weaknesses in the instant case it

would be unsafe to rely upon such evidence to arrive at an order of conviction

in respect of the appellant. Thus the judgment and order of conviction and

sentence so passed by the learned Sessions Judge, Bankura in connection with

Sessions Trial No. 18/2018 (arising out of Bankura Police Station case no.

76/18 dated 25.02.2018) is hereby set aside.

The appellant is acquitted of the charges.

The appellant is on bail and as such she is discharged from the bail

bonds.

Consequently, CRA 628 of 2019 is allowed.

Pending connected application(s), if any, are also disposed of.

Department is directed to send back the LCR immediately. A copy of the