The facts of Tapan Sarkar v. State of West Bengal and Srimati Binapani Sarkar and Another v. State of West Bengal, two cases that were heard together by Justices Kalidas Mukherjee and Mohammed Abdul Ghani of the Calcutta High Court in its criminal appellate jurisdiction and published in 2011 (2) CLJ 104 (Cal), are as follows:
Dipu Sarkar, who had been continually tortured by her brother-in-law and his wife, gave birth to a female child. On August 5, 1990, Dipu and her mother-in-law went outside the house and on their return, found the baby missing. Tapan Sarkar, the appellant, informed them that the baby was floating in the well. Tapan Sarkar, Binapani Sarkar, and Arup Sarkar were charged under Section 498A and Section 302 or 304 of the Indian Penal Code, 1860.
The appellants (and the accused) submitted that the entire case was based on circumstantial evidence and that there was no direct evidence to prove their guilt. Further, they contended that the chain of evidence was not established fully and there were considerable gaps in the linkage of circumstantial evidence to the guilt of the accused. Further the appellants submitted that the judge of the Court below could not examine the accused persons properly under Section 313 of the Code of Criminal Procedure, 1973.
The counsel on behalf of the state contended that there was strong circumstantial evidence pointing toward the alleged occurrence. The infant was all of two-and-a-half months old and could not walk. Unless thrown, the state counsel submitted, there was no other way the baby could have been found in the well. The evidence of Dipu Sarkar, the mother of the baby, was crucial as she testified to the hostile relations between her and the other inmates of the family. Further, the event occurred when the other inmates were present in the house and Dipu Sarkar and her mother-in-law had left the baby on the cot. Further, the motive behind the offence was not difficult to establish and it appeared clearly from the testimonies of various witnesses. Moreover, the evidence of the autopsy surgeon was crucial as it could be shown that the death was due to drowning and that there were injury marks on the scalp of the baby.
The Court dismissed the appeals. The following were the main conclusions:
a. There was sufficient circumstantial evidence against Tapan Sarkar as he had claimed to go get a ‘hazak’ when he cried out to inform everyone of the baby floating in the well.
b. According to the autopsy reports, there was considerable clotting and liquid blood on the scalp of the baby, which could not have been the result of a mishap but intentional throwing which resulted in the head hitting a hard surface inside the well.
The court found conflicting decisions of the Supreme Court on the point of whether strong circumstantial evidence was sufficient to convict the accused.
The author found it curious that the defence did not raise an alternate story.
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(2007) 7 SCC 502 held that in cases based on circumstantial evidence alone, the circumstances from which the guilt is drawn out have to been established completely and thoroughly, along with a direct causal linkage which sufficiently and conclusively links such circumstantial evidence to the criminal act. (2004) 10 SCC 786 held that “circumstances must be proved beyond reasonable doubt and must be shown to be closely connected with the principal fact”. (2001) 3 SCC 628 held that it was important that the circumstantial evidence used to prosecute the accused be complete. However, certain links can be inferred from the facts and need not be expressly proved. Irrespective, in the absence of conclusive evidence and strong suspicion, that inference ought to be drawn which holds the accused not guilty.
(2009) 11 SCC 625 on the other hand, held that a conviction under Section 302 based merely on circumstantial evidence is not sufficient to convict the accused. In such situations, the accused has to be given the benefit of the doubt.
In view of the conflicting legal principles, the court relied on the two important aspects mentioned above while passing the judgment and upholding the conviction. It is curious however, that no alternative story was suggested by the defence to raise any reasonable doubt or apprehension. The endeavour perhaps, should have been to break the chain of causal linkage relating the accused to the murder of the infant. The court itself should have been more inclined to point out that no one disputed the presence of the infant at the time the mother along with the mother-in-law left the premises. It was also not the case of the appellants that an intruder had come inside the house or that there was any case of stealing of the baby. In case of such intrusion, the other members, surely, would have been aware and would have recorded it in their statements. This fact, missed by the counsels and the court, singularly implicates and suggests the involvement of the other family members. The matter in its present form could perhaps have been argued both ways and the story for the prosecution would not have sustained the standard of proof challenge which could have been thrown against it.
(Anubhav Sinha is an advocate in Kolkata.)