Srimati Dipali Roy vs State Of West Bengal

Rajasekhar Mantha, J.:

The subject appeal is directed against judgment and/or order dated 28^th January, 2020 and order of conviction dated 30^th January, 2020 passed by the learned District & Sessions Judge, Kalimpong in Sessions Case No.39 of 2018 connected with Sessions Trial No.21 of 2018. The appellant Srimati Dipali Roy was sentenced to suffer rigorous imprisonment for life and a fine of Rs.50,000/- in default to suffer further rigorous imprisonment for two years under Section 307 of the Indian Penal Code and was further sentenced to suffer rigorous imprisonment for three years and a fine of Rs.5,000/- in default to suffer further rigorous imprisonment for two months under Section 201 of the Indian Penal Code.

On 16^th December, 2017, one Jordan Subba, a teacher at a local school, filed a complaint with Riyang Police Post under the Kalimpong Police Station stating that on 15^th December, 2017 at around 2 p.m. a two day old baby boy, born to one Bulbuli Roy, was killed by her mother appellant herein.

Bulbuli Roy and her mother Dipali Roy had gone to Malbazar Hospital along with one Babita Subba, PW-3. After coming out of the hospital the baby boy was born in a public toilet near Malbazar bus stand. On the way back from Malbazar to Mongpong, the appellant is stated to have killed the baby boy and threw the dead body into the Teesta river near Mongpong, 32 No. Village.

On receipt of the complaint Kalimpong Police registered FIR No.319 of 2017 dated 16^th December, 2017 at about 8:10 Hrs.

The appellant was thereafter arrested and the statements of Bulbuli Roy, the mother of the new born and Babita Subba were recorded under Section 164 of the Code of Criminal Procedure. The body could not be traced despite a 3 km search around the place of occurrence. After the investigation was completed by the Kalimpong Police Station, charge sheet was submitted. The Trial Judge framed charges against the appellant on 3^rd October, 2018 under Sections 302 and 201 of the Indian Penal Code.

PW-1, Jordan Subba was the de facto complainant. It however, transpires that he was more of a scribe of the complaint and had filed the same on the basis of what PW-3 Babita Subba had disclosed to him.

PW-2 was Bulbuli Roy, mother of the new born. She deposed that at about 3 am on 15^th December, 2017 she experienced lot of pain in her stomach. PW-3 was sleeping over her place. At about 6 am she along with the appellant (her mother) and her friend Babita Subba (PW-3) went to Malbazar Super Specialty Hospital. The doctor thereat, initially examined her and referred her to a Gynecologist another floor of the hospital. Bulbuli refused to get admitted to the hospital despite advice. She visited a private doctor PW-14, Sanjib Kumar Halder, at a chamber opposite to the hospital, who prescribed certain antacids and pain relieving medicines. After taking the medication prescribed by the PW-14, she experienced intense abdominal pain and headache.

She was taken to a public toilet near Malbazar Bus Stand. A male child was born to PW-2 in the toilet. She wrapped the baby who was crying, in her jacket and called her mother inside. They hired a private vehicle and were proceeding towards their home at Mongpong whereupon she found that the baby was not breathing. She thought that it had died. The mother of PW-2 thereafter wrapped the baby in a shawl.

She is stated to have told her mother that taking the child to the village would be an embarrassment as she was an unwed mother. She asked her mother to leave the baby in a small forest near the river Teesta. The mother kept the baby near the river at a forest that was in an elevated portion above the river. PW-1 Jordan Subba and other co-villagers arrived at the forest immediately thereafter and the police were called by PW-1.

She deposed that the police only recorded statements of PW-3 Babita Subba, her friend and did not record her own statements. She confirmed that she deposed as in the Court before a learned Magistrate under Section 164 of the Code of Criminal Procedure. She further deposed that there was another lady besides her in the public toilet on the particular day, who was bathing her own baby. The said lady helped PW-2 in the delivery.

PW-3 Babita Subba was the star witness of the prosecution. She was a close friend of PW-2 and had good relations with both PW-2 and the appellant/mother of PW-2. She deposed that on 14^th December, 2017 she was at PW-2’s house. She was sleeping along with PW-2. The later complained of intense stomach pain and headache. PW-3 got her some hot water. Babita informed Bulbuli’s mother about her condition when the mother suggested that it would be appropriate to take her to the hospital.

PW-3 and the appellant took Bulbuli to the Malbazar Hospital at 6.00 a.m. in the morning by a private vehicle. After checking Bulbuli, the doctor advised admission in the hospital without indicating the problem she was undergoing. The doctor referred her to the Gemological Department of the hospital. There was blood test done. For an unexplained reason, the appellant took Bulbuli (PW-2) to PW-14, a private doctor, who had a chamber, opposite Malbazar Super Specialty Hospital. The mother was asked to stay outside. The trio, namely, the appellant Bulbuli and Babita Subba (PW-3) purchased medicines recommended by PW-14. Bulbuli took the medicines along with some water and started to feel more intense pain in her abdomen.

While the appellant wanted to take Bulbuli home, the latter insisted that she be taken to a public toilet near a bus stand. After some time that Bulbuli was inside the toilet, she called her mother. She went inside. PW-3 heard a feeble cry of a baby from inside the toilet. The caretaker of the toilet, namely, PW11, Shanti Basore, asked PW-3, Babita Subba who the ladies inside were as she also heard the cries of a baby. She told PW-11 that her friend was inside the toilet and the baby was her friend’s. The caretaker is stated to have entered inside the toilet. A shawl and bed sheet was given by the appellant to Bulbuli from a bag containing other articles. The baby was wrapped in a shawl and a bed sheet and placed in a bag. The appellant asked PW-3 to arrange for a vehicle to go home which PW-3 flatly refused.

A vehicle was hired by the appellant herself. The appellant was stated to be holding the child very tightly for which PW-3 got scared. The driver of the vehicle asked the appellant as regards the destination to which the appellant replied that he would be told on the way. At a distance of 20 minutes before their residence at Mongpong, the appellant asked the driver to stop the vehicle near the river Teesta. Three of them (PW-2, PW-3 and the appellant) got down along with the child which was kept wrapped inside a bag. The appellant asked PW-3 and Bulbuli to stay at an elevated place near the river. The appellant thereafter threw the baby along with the bag into the river. PW-3 ran away from the place of occurrence and alerted the villagers and informed her paternal aunt about the entire incident. She confirmed that along with the villagers PW-1 and the police arrived at the place of occurrence.

The next witness of some substance was PW-8, one Sabin Biswakarma. He was 22 years of age. He drove the truck at Siliguri. He identified the appellant as his mother-in-law and Bulbuli as his wife. He deposed that he got married to Bulbuli two years ago. He also deposed that he was informed by local villagers that his child had died at Malbazar Hospital after Bulbuli gave birth. He further deposed that Bulbuli informed him that she gave birth to a child in a toilet of a bus stand and the child fell down and died. He heard from co-villagers that the appellant had thrown his child into the river. He married Bulbuli on the police asking him to do so. He confirmed that he was the father of the child that Bulbuli gave birth to. He deposed that he would have taken care of his child and his wife, had he got an opportunity to do so.

PW-11 was Shanti Basore. She was the sweeper at Malbazar bus stand toilet. She deposed that on the 15th of December, 2017 around 2.00 p.m., a lady and a girl had come wanting to use the said toilet. Since they did not come out after a long time and many others are waiting to use the toilet, she knocked on the door and heard a baby crying. Two women emerged from the toilet carrying a newborn baby alive. The baby was wrapped in a cloth. The appellant was identified.

PW-12 was Dr. Rajrita Toppo. She was the doctor who examined Bulbuli between 14th and 15th December of 2017. She advised a urine test which Bulbuli refused to undergo. She further deposed that Bulbuli was discharged from hospital by one Dr. Kumaresh Pal.

PW-14 was Dr. Sanjib Kumar Halder. He confirmed that he ran a private chamber in front of Malbazar Super Specialty Hospital. He confirmed that Bulbuli had come to him on the 15^th December, 201 along with the appellant, complaining of epi-gastric pain. There was abdominal swelling on Bulbuli and he was not certain as to the cause of such swelling whether pregnancy or tumor. He referred her to a gynecologist. His prescription was marked as Ext. ‘6’. This Court, however, does not find any reference to a gynecologist mentioned in Ext. ‘6’.

Based on the aforesaid evidence and the evidence of other witnesses, the trial Judge has convicted the appellant under Section 307 of the IPC for life imprisonment and fine and under Section 201 for destruction of evidence for a period of 3 years and fine.

This Court has carefully considered the evidence on record. The documents marked as Exhibits in the trial Court and have heard the arguments advanced by Ms. Rima Sarkar, learned advocate appointed by the High Court Legal Services Authority for the appellant. This Court has also heard learned AAAG Mr. Jagriti Mishra for the State.

Admittedly, the star witness of the prosecution is PW-3, Babita Subba. Babita Subba has clearly deposed that she was a close friend of Bulbuli, PW-2 and often visited her family. She stayed overnight with Bulbuli. Babita was, however, silent as regards the physical relations between Bulbuli and PW-8. It is difficult for this Court to believe that Bulbuli would not have confided in her closest friend, as regards the love affair and physical relationship with PW-8. There is conspicuous silence on the part of the PW-3 on this score.

It is equally difficult for this Court to believe that PW-3 was not aware that PW-2 was pregnant. It is extremely natural and obvious that a 14 to 15 years old girl, who has physical relations, and has become pregnant, would not confide in her closest friend, PW-3.

While Babita Subba has sought to narrate the entire sequence of events from the night of 14^th December or 3 a.m. on 15^th December, 2018, she is once again conspicuously silent as regards the pregnancy of PW-2. PW-3 was about 19 years old at the time of deposition and close to 18 on the date and time of occurrence would be in a better position to disclose before the Magistrate and to the police as well as the trial court as regards the circumstances under which the Bulbuli became pregnant. The evidence of PW-3 conceals more than it reveals.

There are other chinks in the armour in the prosecution case. Apart from the evidence of PW-3 and PW-11 there is no clear evidence before this Court as to when exactly the baby had died. While there is some evidence to indicate that a live baby was born in the toilet next to the Mal Bazar bus stand, there is also evidence to indicate the presence of another lady who was bathing or cleaning her baby child. The said other lady is stated to have helped Bulbuli to give birth to the child and thereafter. Strangely Bulbuli was not cross examined by the prosecution as regards the presence of the other lady.

What is further unexplained on the part of the prosecution and the PW-3 is the refusal by Bulbuli to summon a taxi or a vehicle to take the appellant Bulbuli and her new born child to her residence at Mongpong from Malbazar. Babita who had come to assist Bulbuli and her mother as a close friend, has not even remotely indicated any reason for her refusal to call a taxi or the circumstances under which she had refused to call a taxi.

The argument advanced by the learned counsel for the appellant that if indeed the appellant and Bulbuli wanted to end of the life of a new born child because of public shame since Bulbuli was not married, they would not have asked Babita to accompany them back to Mongpong.

There is little or no evidence of the appellant having been responsible for the death of a child. There is evidence to indicate that the child had died or was still born or died as result of an injury after fall in the toilet as deposed by Bulbuli. There is however no evidence to indicate that the appellant had in fact ended the life of the new born child.

The evidence of PW-2 versus the evidence of PW-3 indicates conflicting facts. PW-2 Bulbuli deposed that her mother left a deceased new born child near an elevated forest at village no. 32 on the bank of the Teesta river. Babita has deposed that the appellant has thrown the baby that was in a bag into the Teesta river. There is no evidence before this Court as to whether the baby was alive or on what circumstances the baby had died.

In the light of the gaps in the evidence of the prosecution witnesses, the prosecution has failed to conclusively establish that the appellant in fact ended the life of a baby, if the child had in fact died, the appellant merely disposed of the body of a newly born dead child. The ingredients of Section 201 of the IPC are also not attracted.

This Court notices that the trial judge has while setting out dicta from the decision of the Supreme Court that conjecture and surmises cannot take the place of actual evidence has himself conjectured and surmised. In circumstances of this nature and based with evidence of the nature discussed herein above, an accused must and should be granted the benefit of doubt.

In the light of the discussions made herein above, this Court is of the clear view that the prosecution has not been able to establish the charges against the appellant beyond reasonable doubt. The impugned judgment and order of conviction and sentencing shall stand set aside.

The appellant shall be set at free forthwith. The appellant is stated to be on bail. She shall be discharged from her bail bonds after expiry of six months in terms of Section 437A of the Code of Criminal Procedure, subject to her not being wanted in connection with any other case.

Accordingly, CRA 13 of 2020 is allowed and disposed of. Consequently, all connected pending applications, if any, are also disposed of.

Lower Court records along with copy of this judgment be sent down at once to the learned Trial Court for necessary compliance.

Urgent Photostat certified copy of this judgment, if applied for, be furnished to the parties expeditiously.