Calcutta High Court (Appellete Side)
Sikha Rani @ Shikha Biswas vs The State Of West Bengal on 16 January, 2025
Author: Rajasekhar Mantha
Bench: Rajasekhar Mantha
Form No. J(1)
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Present :
The Hon'ble Justice Rajasekhar Mantha
And
The Hon'ble Justice Ajay Kumar Gupta
C.R.A. No. 406 of 2015
Sikha Rani @ Shikha Biswas
Versus
The State of West Bengal
For the Appellants: Mr. Partha Sarathi Bhattacharyya,
Mr. Bhaskar Seth,
Ms. Swarnali Saha.
For the State: Mr. Antarikhya Basu,
Mr. Sachit Talukdar.
Heard on: January 7, 2025 and January 16, 2025.
Judgment on: January 16, 2025.
Rajasekhar Mantha, J.:
1. The instant criminal appeal has been argued for two full
working days in its entirety.
2. The appeal arises out of a judgment of conviction dated 26th
September, 2013 and sentence dated 27th September, 2013 passed
by the learned Additional District & Sessions Judge, Fast Track,
2nd Court at Malda in Sessions Trial No. 8(3) of 2013 arising out of
Sessions Case No. 54 of 2013 wherein the appellant was convicted
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under Section 302 of the Indian Penal Code to suffer Rigorous
Imprisonment for life and Rs.5,000/- as fine. The appellant was
additionally convicted to suffer Rigorous Imprisonment for six
months, in default of payment of fine.
3. The prosecution case is that, late in the night on 27th
October, 2012, the appellant and her husband were alone in their
residence. They were labourers, who worked at Hyderabad. While
at Hyderabad, the husband of the appellant (victim) developed a
brain tumour. They came back to their village in Dalla under
Habibpur Police Station in the District of Malda. Since then the
victim ran a tea stall in the village.
4. On the fateful night, the appellant had been found to have
strangulated her husband with a ‘gamchha’ (commonly used full
thin light but towel in the eastern part of the country).
5. The appellant was found crying when her neighbours,
namely, PW-4 (Sarathi Mondal), PW-5 (Prova Biswas) and PW-6
(Ranjita Mondal), three ladies who were living in the vicinity of
about two houses from the place of occurrence, arrived. The victim
was found lying motionless. The appellant was crying next to him.
The appellant is stated to have immediately confessed to PW-4,
PW-5 and PW-6 that she strangulated and killed her husband with
a gamchha. She is stated to have asked them to save her. Some
local people had already assembled at the house.
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6. PW-3 a local cultivator, resident of the village and a past
Member of the local Panchayat Samity also was informed and
came to the place of occurrence. He is stated to have called
Habibpur Police Station an hour after the incident. The body of the
victim was found lying in the Varandah of the house. It was
covered with a cloth.
7. The police are stated to have arrived at 9 AM on the following
day. The Post Mortem Doctor (PW-8) has stated in his report that
the inquest was conducted at 9 O’clock in the morning, the next
day of the incident i.e. 28th November, 2012. At about 9:35 A.M.,
PW-2 is stated to have written the complaint addressed to
Habibpur Police Station on the instructions of PW-1. The FIR was
registered at about the same time i.e. at 9:35 A.M. Admittedly
Habibpur Police Station is at a distance of 14 kilometers from the
place of occurrence.
8. The inquest report was signed by PW1 and PW-2 and a
couple of independent witnesses. The Post Mortem Doctor was of
the opinion that the death of the victim was homicidal in nature.
He gave a detailed report of the injuries on the body of the victim.
The findings and opinion of the Post Mortem Doctor is as follows:
“On examination I found –
Rigor mortis and cyanosis present, mouth closed, scales present
over abdomen with inguinal area, eyes closed, natural orifices
healthy.
External injuries –
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1. old abrasion present over a) right fore arm measuring 8
inches/1 1/8 inches b) left elbow ¼ inch x ¼th inch c) left wrist
¼ inch x ¼ inch.
2. one bail scratch mark cresentric in shape present over left
wrist
3. lacerated wound present over inner surface of lower lip
measuring 1/8 inch x 1/8th inch
4. evidence of injection mark present over left lateral arm, on
dissection, extravasation of blood diffused in the soft tissue
5. one very faint mark of ligature around the neck placed at the
level of thyroid cartilage, continuous, transverse in direction. The
skin under the ligature shows very faint brownish in colouration
and abrasion. On dissection the sub cutaneous tissue shows
extra-vassation of blood defused in the soft tissues of neck, more
prominent in left side of neck tissues. Haematoma present in
Sterno cliedo muscle. Thyroid and hyoid cartilage intact.
Evidence of vital reaction present. All the injuries are fresh and
ante mortem except serial no.1.
6. no other external injuries are detected over the body at the
time of examiantion.
Internal findings:
1. scalp – healthy
2. skull – intact,
3. meninges and brain – congested,
4. mucosa of mouth, tongue, pharynx, larynx and vocal cord –
congested
5. Condition of neck tissues and thyroid and other cartridges
already mentioned and trachea congested and contains frophy
secretion.
6. Chest – healthy
7. Esophagus – congested
8. Pleura – congested, petechial haemmoragic spots over
visceral surface.
9. Both lungs – congested.
10. Pericardium congested, petechial haemmoragic spots
over visceral surface.
11. heart congested, large blood vessel congested.
12. abdominal wall – healthy
13. peritoneum – congested
14. mucosa of stomach congested and contains undigested
rice etc. no peculiar smell.
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15. small and large intestine congested.
16. Liver congested
17. spleen, pancreas, kidney – congested.
18. Bladder empty.
19. Pelvic cavity tissue and pelvic bones – healthy
20. Genital organs – healthy
21. Spinal column and spinal cord – healthy
As per my opinion probable time since death (if all factors
including observation at inquest) within 36 hours of post-mortem
examination.
The cause of death to the best of my knowledge and belief is
due to asphyxia due to effects of the antemortem ligature
strangulation as noted above.
Homicidal in nature.
Manner of causation of injuries by ligature strangulation.”
9. Based on the investigation conducted thereafter, a charge-
sheet was submitted against the appellant under Section 302 of
the Indian Penal Code. The charge-sheet had 14 named witnesses.
Trial commenced after framing of charges. Out of the above, the
prosecution chose to examine ten witnesses.
10. PW-1 was Radharaman Biswas, brother of the victim. He
claimed that he was participating in a religious function at a local
temple one kilometer away from the place of occurrence. He was
informed of the incident by his own brother, namely, Ramani
Biswas.
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11. He rushed to the place of occurrence where the appellant is
stated to have confessed (for the second time), to have killed her
husband by strangulating him with a gamchha. He deposed that
he told the appellant that he could not help her without consulting
the local villagers.
12. PW-2 was Jayanta Biswas. He is the scribe of the complaint.
He proved the complaint and stated that it was written at the
instructions of PW-1.
13. PW-3 was Gour Gopal Bala. He was the local cultivator, who
also came over to the place of occurrence and is stated to have
informed the police over his own mobile phone on the fateful night.
14. PW-4 was Sarathi Mondal, a neighbour as were PW-5, Prava
Biswas and PW-6 Ranjita Mondal. They deposed that their houses
were located approximately one or two houses from the place of
occurrence. They uniformly deposed that they reached the place of
occurrence after hearing the commotion and cries of the appellant.
They identically deposed, without any contradiction, that they
found the victim lying motionless and the appellant sitting next to
him and crying. Each of the aforesaid PW-4, PW-5 and PW-6
consistently and uniformly stated that the appellant had told that
she strangulated and killed her husband (the victim) with the help
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of a gamchha. Their statements were duly recorded in course of
investigation by the I.O. under 161 of the Cr.P.C.
15. PW-7 was the Officer-in-Charge of the Habibpur Police
Station. PW-8 was the Post Mortem Doctor. PW-9 was a
photographer by profession attached to the Habibpur Police
Station.
16. PW-9 deposed that he also recorded the statements of each
of the persons examined by the police, in a videographic digital
format. The DVD containing the aforesaid statements is available
with the records of the case.
17. PW-10, Kajal Chatterjee, was the Investigating Officer. He
deposed that when he reached the place of occurrence on the 28th
of November 2012, the appellant, had confessed (for the third time)
before him that she had strangulated and killed her husband with
the help of a gamchha. The said confession was recorded by the
I.O. in a secluded place, at the place of occurrence. The appellant
surrendered the gamchha which was seized under seizure list
signed by PW-10, PW-1 and PW-2.
18. In examination under Section 313 of the Cr. P. C., the
appellant denied most of the circumstance confronted to her by
the Trial Judge. The appellant, however, volunteered at the
8
instance of the Trial Judge that she was innocent and that her
husband died due to the tumour in his brain and that he was a
regular alcoholic. She stated that the victim died only out of the
ailments and she had no role to play in his death. Detailed
arguments were advanced by the prosecution of the defence. The
Trial Judge after discussing the evidence of the PW-1 to PW-10 in
substantial detail, found primarily that the charges against the
appellant was proved beyond reasonable doubt. He thereafter
dealt with the arguments advanced by the appellant as follows:
19. Insofar as an extrajudicial confession of the appellant is
concerned, relying upon a decision of the Supreme Court in the
case of Sahadevan and Anr. Vs. State of Tamil Nadu reported
in (2012) 6 SCC 403, he found extrajudicial confessions before
three independent witnesses namely, PW-4, PW-5, and PW-6 along
with the same confessions of PW-1 and PW-10 could be relied
upon by the prosecution.
20. He found that the confessions were untainted and
independent and were made voluntarily. He further held that the
said extra judicial confessions inspired confidence. There were no
material discrepancies or inherent improbabilities in the same. He
also found the extra judicial confessions corroborated by the
medical evidence.
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21. On the question of absence of motive having been proved the
court held that by reference to the decision of the Supreme Court
in the case of Gurcharan Singh v. State of Punjab reported in
AIR 1956 SC 460, Narayan Nathu Naik v. State of
Maharashtra reported in AIR 1977 SC 1656 and in the case of
Subedar Tewan Vs. State of U.P. reported in AIR 1989 SC 733
found that the absence of motive would not be fatal to a conviction
in the face of direct incontrovertible evidence.
22. In a sense the Trial Judge found that in a case based on
extrajudicial confession, duly corroborated by some evidence
absence of motive is not fatal to the prosecution case.
23. The Trial Judge further placed stronger reliance on the
statements of the appellant under 313 of the Cr.P.C. The appellant
did not indicate or suggest the presence of any other person in the
house at the place and time of occurrence. He therefore found only
the appellant could have caused the death of the victim. He also
found the evidence of PW-8, the post mortem doctor, to be
conclusive and clearly indicative of a prior scuffle between the
appellant and the victim which caused laceration on the lips of the
victim and the scratch mark on his body. The conclusion of the
Post Mortem Doctor was found incontrovertible by the defence.
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24. The Trial Court lastly found that the non-production of the
gamchha was not fatal to the prosecution case. He relied upon a
decision of the Supreme Court in the case of C. Muniappan v.
State of Tamil Nadu reported in (2010) 3 SCC (Criminal) 1402
to argue that not every defective investigation or evidence on the
part of the Investigating Officer would lead to an acquittal. The
Trial Court responsibly continued with the available evidence on
record to see if the charges were proved.
25. Based on the above, the Trial Judge convicted the appellant
finding the charges proved beyond any reasonable doubt.
26. This Court has carefully considered the evidence on record
and the findings of the Trial Court. This Court has also
extensively heard the learned counsel for the appellant.
27. On the question of extrajudicial confession and the
circumstances under which it can be accepted either with
corroboration or on its own for the purpose of convicting, he relied
upon the case of S. Arul Raja VS. State of Tamil Nadu reported
in (2010) 8 SCC 233 paragraphs 48 to 56. He also relied upon
the case of Chandrapal – Vs. State of Chhattisgarh reported in
(2022) 3 AICLR 152 (S.C.) particularly paragraph 12 onwards
thereof.
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28. The proposition and principles laid down in the aforesaid
two cases are not very different from the Sahadevan decision
(supra) were relied upon by the Trial Court.
29. This Court has particularly noted the observation in
paragraphs 49, 50, 51 and 53 in the case of S. Arul Raja (supra)
cited by Counsel for the appellant which is set out hereinbelow.
49. In Maghar Singh v. State of Punjab [(1975) 4 SCC 234 : 1975 SCC
(Cri) 479] while dealing with the question of extra-judicial confession,
this Court held as follows: (SCC p. 273, para 5)
“5. … If the court believes the witnesses before whom the confession
is made and it is satisfied that the confession was voluntary, then in
such a case conviction can be founded on such evidence alone as was
done in Rao Shiv Bahadur Singh v. State of Vindhya Pradesh [AIR
1954 SC 322 : 1954 Cri LJ 910] where Their Lordships of the
Supreme Court rested the conviction of the accused on the extra-
judicial confession made by him before two independent witnesses,
namely, Gadkari and Perulakar. In the instant case also, after perusing
the evidence of PW 3 and PW 12 we are satisfied that they are
independent witnesses before whom both the appellant and accused
Surjit Kaur made confession of their guilt and this therefore forms a
very important link in the chain of circumstantial evidence. In our
opinion the argument proceeds on fundamentally wrong premises that
the extra-judicial confession is tainted evidence.”
(emphasis supplied)
50. The evidentiary value of the extra-judicial confession must be judged
in the facts and circumstances of each individual case. Extra-judicial
confession, if voluntarily made and fully consistent with the circumstantial
evidence, no doubt, establishes the guilt of the accused. The extra-judicial
confession, if voluntary, can be relied upon by the court along with other
evidence in convicting the accused. However, the extra-judicial confession
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cannot ipso facto be termed to be tainted. An extra-judicial confession, if
made voluntarily and proved, can be relied upon by the courts.
51. This Court in State of A.P. v. S. Swarnalatha [(2009) 8 SCC 383 :
(2009) 3 SCC (Cri) 873] held as follows: (SCC p. 387, para 16)
“16. … Extra-judicial confession as is well known is a weak piece of
evidence, although in given situations reliance thereupon can be
placed. (See State of U.P. v. M.K. Anthony [(1985) 1 SCC 505 : 1985
SCC (Cri) 105] , SCC p. 517, para 15 and State of Rajasthan v. Kashi
Ram [(2006) 12 SCC 254 : (2007) 1 SCC (Cri) 688] , SCC p. 262,
para 14.)”
53. This Court in State of A.P. v. Kanda Gopaludu [(2005) 13 SCC 116 :
(2006) 2 SCC (Cri) 121] held (at SCC p. 118, para 3) that “extra-judicial
confession is admissible if it inspired confidence and is made voluntarily”.
30. It is undisputed that the evidence of PW-4, PW-5 and PW-6
are uniform, consistent and without contradiction whatsoever.
The said three witnesses are independent and nowhere related to
the appellant or the victim. When three independent witnesses
confirm the extrajudicial confession by the appellant, one can
easily come to the conclusion with the same is, not made under
any duress.
31. This Court also notes that the said extra judicial confession
was made voluntarily and is substantially and comprehensively
consistent with the chain of events in the case.
32. Such confessions have been proved and clearly appeared to
be untainted. The said confessions were made on volition. It also
appears in no uncertain terms that the evidence as regards extra
13
judicial confession by the appellant are corroborated with the
evidence of PW-1 and PW-10. Unlikely the case of S. Arul Raja
(Supra), the aforesaid extra judicial confession of the appellant
was not made in police custody.
33. This Court also, therefore, has no reason to disagree with
findings of the Trial Court that the aforesaid confession, is
sufficient to convict the appellant for the aforesaid purpose. This
Court finds the aforesaid extra judicial confession with the
appellant having been seen last with the victim.
34. The appellant has in examination under Section 313 not
made out any case that there was nobody else present in the
house than she and the victim, at the time and place of
occurrence.
35. There is no answer of the appellant under section 313 except
that the appellant was innocent and the victim died of a tumor in
the brain and his alcoholism. The appellant has not explained the
injuries on the victim as having not been caused by persons other
than herself.
36. The appellant relied upon the case of Chandrapal (supra).
In the said case after upholding the applicability of the extra
judicial confession of the appellant therein made before one person
the Court continued to examine the application of the last seen
theory together.
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37. This Court further notes from the medical evidence that
there was nail scratch mark on the left wrist of the victim and the
lacerated wound on the lower lip measuring about 1.8 inches. The
said wound could only have been caused in course of scuffle by
the appellant and the victim. Therefore, even on this score this
Court is inclined to accept the findings of the Trial Court.
38. Let us now examine the arguments advanced by learned
counsel for the appellant. They are as follows:
(a) There is no clear evidence as to the time when the
inquest was conducted on the appellant.
(b) While the post mortem doctor has stated that the
inquest was conducted at about 9 am in the morning, the
compliant having been received at 9:35 am from PW-1 and the
FIR being registered thereafter indicates that the investigation
had started even before the complaint and FIR has been
received.
(c) The offending weapon namely a Gamchha may have
been produced in the Court, but the seizure list could not have
been proved when the evidence of the independent witnesses to
sign thereon. Non production of the Gamchha before the Trial
Court, therefore, does not prove that the victim’s death
occurred at the instance of the appellant.
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(d) He lastly argued that the evidence of the post mortem
doctor is incomplete. PW-8 was not asked as to whether the
ligature mark which was caused by strangulation and
consequent opinion of homicidal death of the victim would
have been caused by the Gamchha in question. The non
production of the Gamchha was, therefore, vital to the case of
the prosecution.
(e) He lastly argued that since the post mortem doctor
was not asked as to whether the appellant could have, in fact,
strangulated the victim with the help of a Gamchha. The co-
relations between the strangulation and the appellant have not
been conclusively proved by the prosecution.
39. This Court finds that while the time when the inquest was
conducted ought to have been mentioned the same by itself would
not throw out the case of prosecution. The inquest was conducted
before and signed by three witnesses. The report was proved in
Trial.
40. The seizure list was produced and proved in this Trial. The
seizure of the Gamchha, the medical evidence and the Extra
Judicial Confessions of the appellant, clearly establish that the
victim died of strangulation caused by the appellant. The absence
16
of the question to the post mortem doctor cannot displace the
prosecution case.
41. Given the fact that the appellant was also a labour
reasonably stronger than a lady not engaged in daily labour, it is
not improper that the appellant could have inflicted injuries on the
victim.
42. This Court finds that the ligature marks found on the back
and left side of the neck of the victim clearly indicate that they
were inflicted with a cloth akin to a Gamchha. This is so as the
lighter ligature marks on the right side of the neck of the victim
indicate that the strangulation occurred by pulling the neck of the
victim upward when the victim was lying on his left side. The body
of the victim was had to be turned on a side by the inquest officer.
43. The appellant using the Gamchha in committing the offence-
in-question therefore cannot be ruled out. It is the only conclusion
that one can arrive at, given the fact that the appellant was last
seen with the victim. The physical strength of the appellant may
also have been sufficient to inflict the injury on the victim, given
the fact that he was already weak due to his congested liver
(probably caused by regular alcoholism) and his admitted ailment
of tumour in the brain.
44. The victim may not have been able to put up a stronger fight
after the physical injuries inflicted on him. The pre existing
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injuries and ailments of the victim may also be a cause for his
physical weakness to counter the attack by the appellant which is
admittedly the defence case.
45. There is also substance in the finding of the trial judge that
P.M. Doctor’s report did not indicate any tumour in the victim’s
brain or any fatty liver disease caused by alcoholism.
46. For the reasons stated hereinabove, this Court finds no
reason to interfere with the findings of the learned Trial Judge in
the impugned judgement. The judgement and order of conviction
are confirmed. Accordingly, the instant appeal is dismissed.
47. Before parting with this case, this Court would like to record
its appreciation for very sincere and dedicated efforts put in by the
learned counsel for the appellant in canvassing the case of his
client.
48. Let a copy of this judgment be sent down to the Court below
for information.
50. Let the T.C.R. be returned to the Court below at once.
51. Urgent photostat certified copy of this order, if applied for, be
supplied to the parties as early as possible.
(Rajasekhar Mantha, J.)
(Ajay Kumar Gupta, J.)
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