Calcutta High Court (Appellete Side)
The State Of West Bengal vs Md. Islam on 21 June, 2013
Author: Ashim Kumar Roy
Bench: Ashim Kumar Roy
Form No. J (1)
IN THE HIGH COURT AT CALCUTTA
Criminal Revisional Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Ashim Kumar Roy
And
The Hon'ble Justice Subal Baidya
Death Reference 02 of 2013
The State of West Bengal
Versus
Md. Islam
with
C.R.A. No. 281of 2013
Md. Islam
versus
The State of West Bengal
For Appellant : Mr. Sandipan Ganguly,
Ms. Sreyashee Biswas
For State : Mr. Manjit Singh, P.P.
Mr. Syed Shamser Ali.
Heard On : 8.5.2013, 10.5.2013 & 14.5.2013
Judgement On : 21-06-2013.
ASHIM KUMAR ROY, J.:
The accused Md. Islam was placed on trial before the learned Additional Sessions Judge, Fast Track 3rd Court, Islampur, Uttar Dinajpur to answer charges under Section 376/511 IPC for attempting to commit rape on his daughter Parveen Khatoon and under Section 302 IPC for killing her. He was also charged under Section 324 IPC for voluntarily causing hurt to his wife Ruksana Khatoon by means of a slaughter knife, an instrument for stabbing.
While in the trial, he was convicted under Section 302 of the Indian Penal Code for causing death of his daughter and sentenced to death but earned an acquittal against the charge under Section 376/511 of the Indian Penal Code. He was also convicted under Section 324 IPC for causing hurt to his wife by dangerous weapon and sentenced to suffer imprisonment for one year and to pay a fine of Rs. 1000/- and in default, to suffer simple imprisonment for 6 months.
The acquittal of the appellant of the charge under Section 376/511 of the Indian Penal Code was neither challenged either on behalf of the State or on behalf of the de-facto complainant, as have been reported by the learned Public Prosecutor.
2. On April 1, 2013 the Death Reference 2 of 2013, was listed before this Bench. When it was found the preparation of paper book is complete and the death reference was ready for hearing. However, having found no appeal has been preferred by the convict, at once we directed the office to issue notice to him, with a further direction that he should be produced before us in person on the returnable date. Accordingly, on April 1, 2013 the convict was produced before us, when we first apprised him of his rights to resist the Death Reference and defend him as also his right to prefer appeal against his conviction. At the same time we also apprised him if he is unable to engage a lawyer at his own cost then also he is legally entitled to the service of a competent criminal lawyer to defend him in the Death Reference and prefer appeal against his conviction completely at the cost of the State. However, on his prayer we allowed an adjournment for 10 days. On the next day when the convict was produced from custody， the Welfare Officer of the Correctional Home was also present in Court and we were informed by him that as desired by the convict intimation was sent to his brother Md. Lal and his mother requesting them to meet him at the Correctional Home, but no service return was received. Thereafter on 16th of April 2013 the convict was again produced before us and on that day both the Welfare Officer and the Superintendent of Correctional Home were also present in Court and we were informed by them that already his mother had expired and his brother has refused to meet him. In such a situation we engaged Mr. Sandipan Ganguly, a very competent lawyer practising in the criminal side of this Court for more than 16 years and also in the State panel to defend the appellant with a junior of his choice. Thereafter, on 23rd of April 2013 a memo of appeal has been filed on behalf of the convict challenging the order of conviction and sentence. The appeal was then admitted and both the said criminal appeal and the Death Reference were taken up for hearing together.
3. The prosecution case in a nutshell is as follows:
On 10th April 2011 when the de-facto complainant, i.e., the wife of the appellant was sleeping with her minor children, at about 9.30 p.m. the appellant came there and tried to rape their daughter Parveen Khatoon. As the convict and her daughter tried to resist him, he attacked the de-facto complainant and assaulted her with his butcher- knife and caused bleeding injuries on her right leg. In the meanwhile, the daughter of the convict tried to run away, but the convict chased her for some distance and after she was caught, he assaulted her with the butcher's knife and killed her. Hearing the noise the other children of the de-facto complainant sleeping there woke up and the villagers rushed to the spot hearing their cries and the appellant fled away.
4. This is a case which is essentially based on the eyewitnesses' account of assault. They are PW/1, Ruksana Khatoon, the de-facto complainant, the mother of the victim and the wife of the appellant, PW/2 Ashique, the son of the appellant, PW/3 Simran Khatoon, the daughter of the appellant, PW/4 Saifun, PW/5 Khus Md., PW/6 Dipen Ray and PW/9 Giasuddin are all neighbours and they are post occurrence witnesses. PW/7 Dr. Binoy Bhusan Bera is the Autopsy Surgeon who held the postmortem over the dead body. PW/8 Dr. Jiban Krishna Bhaduri is the doctor who treated the de-facto complainant for the injuries she sustained on being assaulted by the appellant. PW/10 Dilip Jamadar is an employee of Islampur Sub-Divisional Hospital where postmortem was held. PW/11 Gurudas Saha is the scribe of the FIR. PW/12 Shrutirupa Ghosh is a Judicial Magistrate who recorded the statement under Section 164 CrPC of the witnesses. PW/13 Samir Tamang is the Investigating Officer of the case and PW/14 Mritunjay Singh is a police personnel.
From the side of the defence no witness was examined. It appears from the trend of cross-examination and the reply given by the convict while was questioned under Section 313 CrPC that he has been falsely implicated in the said case.
5. At the very beginning, the learned Counsel for the appellant vehemently contended that the Ext-7 is not admissible in evidence as FIR of the case because the same was hit by the legal prohibition contained in Section 162 CrPC. He then submitted that much prior to the handing over the written complaint to the police pursuant to which the FIR was recorded, over mobile PW/11 Gurudas Saha informed the police about the aforesaid incident of murder and the same was reduced into writing against a G.D. Entry Ext.-9 and the content thereof clearly discloses commission of a cognizable offence and pursuant to which police came to the spot and started investigation. He then draws our attention to the Ext.-9 and pointed out that the same was, first in point of time, a report lodged to the police about the aforesaid incident and although the identity of the victims and the assailants were very much there, but there was no mention that PW/6 Ashique and PW/3 Simran Khatoon were also present at the spot and saw the incident. He then urged that the subsequent claim of the prosecution that at the time of the incident both PW/2 and PW/3 were present at the place of occurrence is a clear improvement in the prosecution case and an afterthought. He then highlighted the reasons as to why the evidences of PW/1, PW/2 and PW/3 are not otherwise reliable.
The learned Counsel for the appellant then drew our attention to the evidence of PW/1 and submitted, according to her, after she sustained injuries on her right leg caused by the appellant, she fell down and thereafter her daughter was assaulted and killed. Now taking us through her cross-examination it was pointed out that she admitted that was a dark night and having received injuries on her leg she lost her mobility and police removed her and while the victim was trying to flee away, she was assaulted outside the house. Then the learned Counsel referred the evidence of PW/2 and PW/3 and pointed out while in his cross-examination PW/2, the son of the de-facto complainant admitted that was a dark night and the outside view was not visible from the room, according to the evidence of the PW/3, the daughter of the de-facto complainant, the assault on her mother took place inside the room. He then took us to the evidence of PW/13, the Investigating Officer of the case and pointed out that according to the said witness, after arranging electric light inquest was held and in the sketch map no street lamp was shown in and around the place of occurrence. Therefore, according to the learned Advocate of the appellant, the claim of the PW/1 that she had seen the entire incident of assault on her daughter, victim Parveen in the street light is not at all acceptable. Firstly, because the outside was dark and there was no street lamp and secondly, from the room where she was lying injured the outside view was not visible.
Coming to the evidence of PW/2, the learned Counsel for the appellant first urged that he being a child witness, his evidence has no independent value unless corroborated by very strong evidence. He submitted that according to the witness, the deceased was assaulted in the courtyard of the house, but at the time of the inquest her dead body was found in the field of one Asaru, which was about 50/100 meters away from the house of the PW/1. Our attention was then drawn to the cross-examination of the PW/3 where she disclosed altercation between her parents took place on the varandah.
Lastly, he pointed out the following infirmities in the prosecution case.
a) According to the prosecution case, the offending weapon was embedded in her head and the same was taken out during the postmortem. Although the fingerprint of the appellant was taken during investigation, but no attempt was made on their part to match the specimen fingerprint of the appellant with the fingerprint found in the alleged offending weapon.
b) No evidence was led to prove that the alleged offending weapon was belonging to the appellant.
c) To the doctor PW/8 who treated the PW/1 for her injures, the appellant was never named as her assailants and there was nothing against him in the injury report Ext-4.
The learned Counsel for the appellant closed his submissions contending that in the trial the case of the prosecution has not been proved against the appellant beyond all reasonable doubt and this is a clear case of acquittal. He then vehemently contended no case has been made out that this is one of such case which falls in the category of rarest of rare cases, therefore the question of Death Sentence does not at all arise.
6. On the other hand, the learned Public Prosecutor first pointed out that the case against the appellant was based on the evidence of his closed relations and they were his wife, son and daughter. He then submitted when they deposed against the appellant, there is no scope to disbelieve the prosecution case. He further submitted that all the three eyewitnesses were cross-examined at length, but their credibility was never shaken. He contended the evidence of the PW/1, PW/2 and PW/3 the eyewitnesses to the occurrence have been fully corroborated by the evidence of the other post occurrence witnesses, PW/4, PW/5, PW/6 and PW/9. He further submitted that the prosecution has proved its case beyond all reasonable doubt and the trial Court was fully justified to convict the appellant. He, however, conceded that no case for Death Sentence has been made out.
7. This is a case where there is no dispute that the injuries which caused the death of Parveen Khatoon were ante mortem and homicidal in nature. We have also very carefully gone through the postmortem report and considering the same together with the evidence of the postmortem doctor, we find no reason to take a different view.
8. The prosecution case entirely rest on the evidence of three eyewitnesses to the occurrence, viz., PW/1, Ruksana Khatoon, PW/2, Ashique, PW/3 Simran Khatoon. Even accepting the contention of the learned Advocate of the appellant that in this case the Ext-7, the FIR is hit by the prohibition contained in Section 162 CrPC and what was recorded in Ext.-9, was the information to the police, first in point of time, about the said incident disclosing commission of the cognizable offence and on that basis the police proceeded to the spot and started investigation, accordingly Ext.-9 ought to be held the FIR of this case, still, we are unable to exclude and reject the PW/2 and PW/3 as the eye- witnesses to the occurrence, merely because their presence was not mentioned in the Ext.-9, the G.D. Entry. In this case the Ext-9 was recorded on the basis of the statement of PW/11 Gurudas Saha who was never present at the time of the occurrence and according to him, he intimated the police about the same incident on being informed by one Jakir Hossain over phone, therefore, non-mentioning of the presence of those eyewitnesses therein is not fatal for the prosecution. Moreover, it is well-settled that non-furnishing the details of the eye-witnesses in the information given to the police, at the first point of time, is no ground to reject their evidence. In this regard reliance may be placed in the following cases: i) Bhagwan Sing Versus State, reported in AIR 2002 SC 1621; ii) Chittar Lal Versus State, reported in AIR 2003 SC 3590;
iii) Babu Singh Versus State, reported in AIR 1996 SC 3250. We are therefore, not going to exclude the evidence of those two witnesses without testing their evidence.
9. So far as the PW/1 is concerned, it was claimed by the learned Counsel of the appellant that she cannot be accepted to have seen the incident of assault on her daughter by her husband, the appellant herein because of the fact she claimed that she was assaulted inside her room and after sustaining injury on her leg she lost her mobility and only after police came she was removed and her daughter was assaulted outside the house and that was a dark night. Furthermore, it was pointed out from the evidence of PW/2 that outside view was not visible from inside the room and that was a dark night. However, going through the evidence of PW/1 we find during her cross- examination she categorically stated the victim fell down outside their house and not beyond her sight and vision and further claimed to have seen the occurrence in the street light. This is what she deposed in cross-examination by the defence and there was no further cross- examination on this point. In this regard it was also argued that in the sketch map there was no mention about the existence of any street lamp in and around the place of occurrence but we find on this score the investigating officer of the case was never cross-examined. It is noteworthy on this score PW/4 Saifun, a local resident was cross- examined and when it was disclosed that there was light on the pole situated on the roadside.
Accordingly, we find her evidence can safely be relied upon as an eye-witness to the occurrence.
10. Herein above we have already noted as to why we are not inclined to reject at the very threshold the evidence of PW/2 and PW/3 as the eye-witness to the occurrence on the ground canvassed before us by the Counsel of the appellant. Besides that, from the side of the appellant the credibility of the PW/2 was challenged with reference to his cross-examination where, he stated that was a dark night and outside view was not visible from inside the room. But we find it was his evidence that he came out from the room and found his father beating her elder sister at courtyard. Therefore, his evidence that outside view was not visible from the room and that was a dark night does not stand on his way to see the incident after coming out from the room.
The only other witness in this case, the PW/3 Simran Khatoon, the daughter of the appellant is equally trustworthy. The witness in her deposition vividly described how the victim was assaulted by the appellant. From side of the appellant nothing is brought to our notice which may justify us to disbelieve her.
11. The defence suggested to both the PW/2 and PW/3 that the victim sustained injury when she fell on a weapon, but both of them categorically denied the same. In our opinion, the postmortem doctor would have been the best witness to depose in this regard, but we find his cross-examination was declined.
In the case in hand there is another very vital aspect which cannot be overlooked easily. All the three witnesses viz., PW/1, PW/2 and PW/3 are the wife, son and daughter of the appellant. At the same time they are the mother, brother and sister of the victim. During the trial no case has been made out from the side of the defence as to why these witnesses have falsely implicated the appellant in the commission of the offence screening the real offender. We do not also find from the length and breath of the evidence there is anything, which may remotely suggest a case of false implication.
12. In this case prosecution examined 4 more witnesses, viz., PW/4 Saifun, PW/5 Khus Md., PW/6 Dipen Roy, PW/9 Giasuddin. They were post occurrence witnesses and their unchallenged evidence goes to show that on being attracted by the hue and cry of the PW/1, PW/2 and PW/3 they rushed to the spot and on their arrival they found the victim was lying dead with a knife pierced on her head. At that time PW/1 Ruksana was found crying and disclosed that Parveen was assaulted by her father, the appellant before us and the witnesses also found injuries on her person. Thus, the evidence of PW/1, PW/2 and PW/3 stand amply corroborated by the evidence of those post occurrence witnesses.
13. Coming to the three other alleged infirmities in the prosecution case to which our attention has been drawn, we find that the fingerprint of the accused was obtained during the investigation and the same were sent to the fingerprint expert for obtaining an opinion whether the same matched with the fingerprints found on the offending weapon remained pierced on the head of the victim. Therefore, there cannot be any lapse on the part of the investigating officer. We further find from the Ext-10 the report of the fingerprint expert since the offending weapon did not have any comparable chance fingerprint, no opinion could have been given. The absence of comparable fingerprints on the offending weapon is quite natural in a case of this nature where the weapon was found inserted on the head of the deceased and during postmortem the same was taken out by the Autopsy Surgeon.
The next point that no attempt has been made by the prosecution to prove that the weapon found pierced in the body of the deceased was belonging to the appellant. We do not consider the same to be a lacuna in the prosecution case, in this background that according to the eye-witnesses and the post occurrence witnesses, the knife in question remained pierced in the head of the victim. During inquest the investigating officer also found the knife embedded in her head which would be evident from the inquest report Ext-5 and he identified the same Mat. ext-1. The PW/7 Dr. Binay Bhusan Bera is the Autopsy Surgeon and according to his evidence, during postmortem he found the knife remained embedded in the head of the deceased and he removed the same and handed over to the police and the same was seized and he identified Mat. ext-1 as the said knife. The PW/10 Dilip Jamadar employed in the hospital morgue corroborated the evidence of PW/7 and identified the Mat. ext-1 as the said knife.
So far as the last point raised from the side of the appellant that before the PW/8 who treated the PW/1 for the injury she sustained during the incident the name of the appellant was not divulged as the assailant is concerned, we find neither the PW/8 was asked whether she disclosed the name of the assailant or not, nor the PW/1 was cross- examined to discredit her on this score.
However, when there is the evidence of at least three eyewitnesses to the occurrence and we do not find any infirmity in the same and on the other hand, the same was found to be truly reliable, we are of the opinion that such lapse in the investigation is of no consequence. Coming to the last two points raised by the Counsel of the appellant we do not think it is fatal for the prosecution not to lead any evidence to prove that the offending weapon was actually belonging to the accused. Much has been argued on the point that PW/1 had not disclosed the name of the appellant to the doctor, the PW/8 Jiban Krishna Bhaduri by whom she was assaulted. We are unable to accept such evidence as to contradict the PW/1 on that score for the reason before getting such facts from the doctor, but PW/1's attention was not drawn to such omission and she was not cross-examined on that score.
14. For the reasons stated above we do not find any wrong in the judgment of the trial Court by which the appellant has been convicted for the offence punishable under Section 302 and 324 of the Indian Penal Code. The order of conviction, therefore, stands sustained.
15. Now, coming to the question of sentence we find while taking decision on the point of sentence the Trial Court questioned and obtained suggestion from the PW/1, the de-facto complainant of the case and PW/2, her son. The approach of the trial Court is wholly erroneous, illegal and without jurisdiction. According to the Sub-Section 2 of Section 235 of the Code of Criminal Procedure, after an accused is convicted unless he is dealt with under Section 360 CrPC the trial Judge is supposed to hear the accused on the question of sentence. There is no provisions in the Code of Criminal Procedure, either expressed or implied, at that stage to reach to a correct decision on the point of sentence, the trial Court is required to hear the de-facto complainant and the witnesses.
Now, going through the impugned judgment, we find the learned Judge referring the decision of the Hon'ble Apex Court in the case of Machhi Singh Versus State of Punjab reported in AIR 1983 SC 957 and a few other decisions, not only quoted several passages therefrom he also elaborately discussed what is rarest of rare cases and under what factual background a case falls within the category of rarest of rare cases and call for imposition of death sentence, we do appreciate for such efforts of the learned Judge.
In the trial while the appellant was charged under Section 302 IPC for killing his daughter, in the same trial he was also charged under Section 376/511 IPC on the allegation he attempted to rape her before she was killed, but ultimately he was acquitted of the charge under Section 376/511 IPC. Now, it is really beyond our comprehension and we are unable to understand, after the acquittal of the appellant under Section 376/511 IPC as to how the learned Judge imposed death sentence against him on the consideration the convict being the father went to commit rape and in failure, committed murder of his minor daughter aged about 13 years. It needs no debate once a person has been found not guilty of any particular offence after a full-fledged trial, there is no scope for a Court of law to persuade its decision against him on the basis of the allegations which was never proved. We have no doubt the learned Judge has committed a gross mistake in law, in sentencing the appellant to death on a finding that the victim was killed while she was trying to save her life from the lust of her father, who not only earlier raped her, but at the time of the occurrence intended to rape her. It may be noted there is no evidentiary material that the victim girl was earlier raped by the appellant. We have no doubt the trial Court imposed the death sentence on extraneous consideration.
Thus while we uphold the order of conviction of the appellant under Section 302 IPC, the death sentence stands altered to imprisonment for life.
In the result, death sentence stands rejected and appeal stands partly allowed in the manner as aforesaid.
16. Before we part with this judgment we record our deep appreciation for the valuable assistance, we received from Mr. Sandipan Ganguly, the learned Advocate who appeared in this matter on behalf of the appellant who has no mean to engage a lawyer, in disposing the instant Death Reference and the criminal appeal. We also record our deep appreciation for the assistance we received, goes without saying we always receive from Mr. Manjit Singh, the learned Public Prosecutor.
The learned Registrar General is directed to immediately bring to the notice of the trial Judge through the concerned District Judge under whose territorial limit he is now posted, more particularly to that portion of this judgment where we dealt with the findings of the trial Court on the question of sentence.
The office is directed to communicate this order to the learned Court below as well as to the appellant in the Correctional Home.
A copy of this judgment at the free of cost be given to the learned Advocate of the appellant.
(Ashim Kumar Roy, J.) I agree (Subal Baidya, J.)