Calcutta High Court (Appellete Side)
State Of West Bengal vs Sanjay @ Batul Halder on 30 March, 2015
Author: Ashim Kumar Roy
Bench: Ashim Kumar Roy
Form No. J(1)
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Ashim Kumar Roy
And
The Hon'ble Justice Ishan Chandra Das
DEATH REFERENCE No. 4 of 2014
State of West Bengal
-vs-
Sanjay @ Batul Halder
With
CRA No. 486 of 2014
Sanjay @ Batul Halder
-vs-
State of West Bengal
For the Appellant : Mr. Sekhar Kumar Basu, Sr. Advocate
Mr. Soubhik Mitter
Mr. Kushal Kumar Mukherjee
For the State : Mr. Manjit Singh, Ld. P.P.
Mr. Pawan Kumar Gupta
Heard on: 07.1.2015, 08.1.2015, 13.1.2015, 14.1.2015
and 11.3.2015
Judgment on:- 30.03.2015
Ashim Kumar Roy, J.
The Death Reference and the Criminal Appeal are arising out of the self-same judgement and order and accordingly were taken up for hearing together and disposed of by this judgement.
2. In a sessions trial held before the learned Additional District and Sessions Judge, Fast Track, 2nd Court, Alipore, South 24 Parganas, the appellant Sanjay @ Batul Halder was convicted on 3 counts - firstly under section 302 IPC and then under section 377 and section 201 IPC respectively. He was sentenced to death for his conviction under section 302 IPC and to suffer rigorous imprisonment for 10 years and 5 years respectively for his conviction under section 377 IPC and section 201 IPC. In addition to substantive sentence of imprisonment, he was also sentenced to pay fine with default clause. It was directed that both the sentences for his conviction under section 377 IPC and section 201 IPC shall run concurrently.
3. In the trial, the appellant was charged under section 302 IPC, section 377 IPC and section 201 IPC for committing murder by intentionally causing death of one Babusona @ Hansa, aged about 13 years, his step son and for having carnal intercourse against the order of nature with him and for causing disappearance of evidence of unnatural offence.
4. On and from September 26, 2007, the victim Babusona was found missing. It is the case of the prosecution that on the next day i.e., on September 27, 2007, his mother Mamata Halder, PW/1, lodged a report with Purba Jadavpur Police Station, alleging that she was staying with the appellant, her husband of second marriage along with the victim, Babusona @ Hansa, her son of first marriage and Susanta, the son of the second marriage. The PW/2, PW/3 and PW/4, residents of the same locality corroborated such facts.
Her husband of second marriage did not like staying of Babusona with them and almost everyday used to beat him in a drunken condition. About 3 months from that day while both of her son were playing, her son of second marriage, Susanta fell upon a hot cauldren, when Babusona was mercilessly beaten up by the appellant. Thereafter frequently, he used to threaten her that one day he would definitely kill her elder son Babusona.
On November 26, 2007 at about 1.30 pm the appellant took the victim Babusona on his bicycle on the pretext of going out for strolling. He then returned around 7 pm alone and informed PW/1 that long back he has released Babusona and cannot say where he has gone. Thereafter, he was searched at different places, but could not be traced out. Since the appellant was talking irrelevant and he was trying to escape, suspicion arose and the neighbours confined him.
According to the prosecution, when the victim Babusona informed the PW/1 about the facts that the appellant was having carnal intercourse with him against the order of nature, she charged the appellant and the appellant confessed his guilt and assured her that he will not repeat the same.
It was the further case of the prosecution the PW/2 Lila Sardar, a close door neighbour found, the appellant and the victim together at their house at around noon, on the day from when Babusona was found missing.
The PW/3 was another close door neighbour, who saw both the appellant and the victim leaving their house together in a cycle at around noon, on the day from when Babusona was missing. It is the further case of the prosecution that PW/8 Kuber Mondal while on the fateful day in the afternoon was returning with his rickshaw van with brick loaded, near Dhapa math, he saw a person aged about 30-32 years and a boy aged about 12-13 years were standing in front of a cycle there and in the T.I. parade, the PW/8, Kuber Mondal identified the appellant as the person, whom he saw on that day. Thereafter, the dead body of the victim was found at a place at Dhapa math, which was near to the place where PW/8 saw the appellant with a child and a bicycle.
The PW/14 held post mortem over the dead body and found one transverse ligature mark around the neck of the victim and injuries on the lips tongue tip and nose ears and subconjunctival hammerage on both eyes and also found anal orifis up to 5 cm, allowed the entry of two fingers easily and he opined the death was due to strangulation of ligature around the neck and ante-mortem and homicidal in nature and the condition of anal passage is consistent with fact that he was subjected to regular carnal intercourse.
5. During the trial to prove its case prosecution examined as many as 14 witnesses, whereas the defence examined none and from the trend of cross-examination and from the answer given against the question put to him in his examination under section 313 CrPC, it is found the defence case is one of innocence and false implications.
The relationship between the appellant and the PW/1, Mamata Halder, the victim boy and the child, Susanta was categorically denied by the appellant in his examination under section 313 CrPC.
6. This is a case entirely rest on circumstantial evidence, thus the decision of the court essentially remains inferential and the established facts are the foundation of inference. Inference of guilt against an accused can only be drawn when each link in the chain of evidence led by the prosecution has been satisfactorily and fully proved and chain is complete and considering each piece of circumstance collectively, an irresistible conclusion can be arrived that the accused alone is the perpetrator of the crime in question. All the circumstances so established must be of conclusive nature and consistent only with the hypothesis of guilt of the accused and the same should not be explained on any other hypothesis except that of the guilt of the accused.
7. The prosecution targets the following circumstances to prove the case against the appellant,
(a) The appellant is the second husband of PW/1 Mamata Halder @ Mondal and they were staying in a rented accommodation at Chaitanyabad, Rong Para, Purba Jadavpur, South 24-Parganas as husband and wife with the victim, a son from her first husband and with Susanta, the son from the appellant.
(b) After the birth of Susanta, the appellant started ill behave with her first son Babusona and did not to like him.
(c) The victim Babusona told PW/1, the appellant used to do bad work with him like husband and wife and committed such act on several occasions.
(d) The PW/1 asked the appellant about such thing when he confessed his guilt and told that he will not repeat such thing any more.
(e) According to the PW/1 on the fateful day at around 1.30 pm, her husband left with Babusona in his bicycle and returned alone at around 7.30 pm in the evening and his bicycle was also not with him.
(f) When he was asked whereabouts of Babusona, she was informed he has gone to the house of his Masi, then said to the house of his maternal uncle and left him at Garia. On that night they searched for Banusona but he could not be traced out.
(g) On the next morning the appellant tried to flee away when para people restrained him and police was informed.
(h) Both PW/2 and 3 disclosed before the court that the appellant and the PW/1 used to stay in their locality in a rented accommodation as husband and wife with their two children.
(i) According to the PW/1, in her presence, both the appellant and the victim, around noon, left their place with his bicycle and the PW/3, Sumitra Mondal, a close door neighbour, also saw them leaving on the fateful day in a bicycle more or less at the same time.
(j) On the next day the dead body of the victim Babusona was found at Dhapa ground, near the place, where the dead body was found, a yellow half pant was found lying and was seized and was identified subsequently by the PW/1 as that of the victim Babusona.
(k) PW/14 is the Doctor, who held the postmortem. According to him, the death was due to the effect of application of ligature around the neck and ante- mortem and homicidal in nature and the condition of anus was consistent with the finding of habitual passive agent of anal intercourse.
(l) According to the PW/14, the injuries of strangulation by ligature around the neck was sufficient to cause death.
(m) PW/8, Kuber Mondal is a rickshaw van puller and according to him on the fateful day in the afternoon, when he was returning with his van loaded with bricks, he found a person aged about 35-36 years with a cycle and a boy aged about 12-13 years were standing in front of the cycle. The said person initially was not giving side to him, but thereafter gave space to his way.
(n)The appellant was placed in the T.I. parade and was identified by the PW/8 as the person on the fateful day whom he found with a cycle and a boy.
(o) According to the PW/8, they were seen near Dhapar Math and in court he identified the appellant as the person whom he saw at the place.
(p) During the cross-examination of the PW/8 in reply to a suggestion given by the prosecution, he stated that police had shown him the photograph of the victim.
(q) The dead body of the victim was found lying at a place, which was very close to the place where the appellant was found with his cycle and a child.
8. (a) At the very outset, without disputing the opinion of the Autopsy Surgeon PW/14 that the death of the subject was due to the effect of application of ligature and was homicidal in nature and the condition of the anus was consistent with the finding of habitual passive annul intercourse, from the side of the appellant, the identity of the subject, on which post mortem was held, as that of the deceased Babusona @ Hansa was vehemently challenged. It was contended according to the post mortem report, the dead body was of an unknown boy. In this regard our attention has been drawn to the post-mortem report Ext.-7 and pointed out that in the space provided for noting name, sex, age and caste of the victim, it was noted victim was unknown.
(b) Then the evidence of PW/1, one of the key witnesses to the prosecution, and the mother of the victim boy was assailed contending that although the said witness, in her evidence in chief, claimed that victim told her that the appellant used to do bad work with him like husband and wife on several occasions and when she asked the appellant about the same, he confessed his guilt and told her that he will never repeat such thing and the appellant used to assault her in a drunken state, but the same was never disclosed either in the FIR or in her statement recorded under section 161 CrPC. Therefore, that part of her evidence ought to be kept out of consideration.
(c) It was also contended what the victim allegedly told the PW/1 is purely a piece of inadmissible evidence. It is contended such statement cannot be considered as dying declaration in as much as the same was not a statement as to the cause of death of the victim or as to any of the circumstances of the transaction, which resulted in his death.
(d) It was further contended that the claim of the PW/1 that the appellant is his second wife and after marrying him she, along with the victim, was residing with the appellant at a rented accommodation and then gave birth to a male child Susanta, conceived by the appellant out of his second husband Batul, has to be kept beyond consideration, since admittedly both of them having their spouse living and their previous marriage was not dissolved.
(e) It was then added, evidence of the PW/1, Mamata Halder that on the fateful day at around 1.30 pm the appellant left with the victim in his bicycle for a stroll is of no evidentiary value or of no credence, on the face of her admission in her cross-examination that she used to work as a maid at different houses and leave home at around 8 am in the morning and return home after 4 pm.
(f) Although she alleged when the appellant returned alone without the victim, the bicycle was also not with him, however, according to the evidence of the Investigating Officer PW/7, the bicycle was seized from their residence.
(g) It was vehemently contended according to the PW/1 as suspicion arose that the appellant may be behind the missing of the victim he was confined by the local people and from there he was handed over to the police, but not a single witness was examined in support of such claim.
(h) It was also contended inviting our attention to the FIR, Ext.2 that the same was received from the PW/1 at around 14.25 hrs i.e. at around 2.25 pm, where it was stated that the victim was still missing. But from the Ext.-I, the seizure list, it appears that between 12.35 to 12.55 hrs on that day, the wearing apparels of the victim was seized by the police and being identified by the PW/1.
Therefore, much before the lodging of the FIR, although it was known to her that Babusona was killed but her non-disclosure of such fact in the FIR and claiming that he was still missing, makes her totally un-reliable witness and her evidence cannot be acted upon. It was then pointed out that she admitted in her cross- examination that she lodged the FIR within half an hour, after she saw the dead body.
(i) It was also contended there is a serious lapse on the part of the prosecution, when the scribe of the FIR Panchanan Mondal was not examined in spite of the fact his whereabouts is very much known to the Investigating Officer of the case.
(j) No wearing apparels of the victim although seized but not exhibited during the trial.
(k) It is then claimed that although the prosecution examined PW/2 Lila Sardar and PW/3 Sumitra Mondal to prove that in their locality the appellant with PW/1 and two of their children used to reside in a rented premises but during the trial, while PW/1 was declared hostile, the PW/2 admitted that she disclosed such fact in the court for the first time. The PW/2 being declared hostile by the prosecution during the trial, his evidence cannot be acted upon.
(l) So far as PW/9 Panchu Sardar and PW/10 Tapati Sardar, the grandfather and the grandmother of the victim are concerned, it was claimed while PW/9 has no direct knowledge as to how the appellant behaved with the victim and he claimed to have heard about such facts from PW/10, on the other hand, PW/10 never disclosed during investigation to the police that the victim while was alive told her about such fact. Thus, it is contended the evidence of both the witnesses also to be kept out of consideration.
(m) It is then vehemently urged that the evidence of PW/8 Kuber Mondal, cannot at all be acted upon as a circumstance of "last seen together". It is contended it might be that the said witness identified the appellant in the T.I. Parade, however, in course of trial, the victim boy was never identified as the boy, who was found with the appellant near the place where subsequently his dead body was discovered.
(n) The value of identification of the appellant by the PW/8 in the T.I. Parade was also challenged on the ground that the appellant has a cut mark on his cheek but the said witness could not tell whether any tape was affixed to facilitate his identification.
Lastly, it is contended that this is not one of such case, which can be equated with rarest of rare cases and therefore in any event the order of death sentence cannot be sustained.
9. The learned Public Prosecutor contended that the case against the appellant has been proved beyond all reasonable doubt and no question of interference with the order of conviction at all crept in. According to him pointing towards the guilt of the appellant following facts has been established by the prosecution.
a) Victim suffered homicidal death and he was subjected to regular carnal intercourse was proved by the PW/14 and the claim of the learned counsel for the appellant that the identification of the dead body was not proved is against the materials on record.
b) The PW/2, PW/3 and PW/5 have proved the appellant was residing with the PW/1 as husband and wife and the victim, step son of the appellant and one Susanta, his own son.
c) The PW/1, PW/2 and PW/3 proved that the appellant on the fateful day took away the victim boy with him in his bicycle and thereafter he was never seen alive.
d) Both the PW/1 and PW/3 proved that during his life time and just a few days before his death the victim disclosed to them that the appellant used to misbehave with him and having carnal intercourse against the law of the nature.
e) What have been stated by the victim Babusona to his mother PW/1 and grandmother PW/3 soon before his death, according to the learned Public Prosecutor, ought to be admitted into evidence as his dying declaration. It is further according to the learned Public Prosecutor even accepting that the statement so made by the victim Babusona may not be relates to the cause of his death or a circumstance leading to his death but at the same time such statement is relevant as it furnished immediate motive as being the part of the transaction of death.
f) It would be evident from the evidence of PW/1 that when she charged the appellant he confessed his guilt and assured that he shall never repeat such thing.
g) The PW/8 is the witness who has proved that soon before his death the victim was found in the company of the appellant near Dhapa math, when the appellant was with his bicycle and subsequently the dead body of the victim was found at a nearby field.
h) The appellant was identified by the PW/8, both during T.I. Parade and on the dock.
10. We have carefully considered the rival submissions of the parties as also the evidence on record. The ruling cited from both sides are also taken into account.
11. It is already noted this is a case, rests entirely on circumstantial evidence.
(a) So far as the circumstance, that the victim died a homicidal death and during post mortem PW/14, Autopsy Surgeon found the condition of anal passage is consistent with regular carnal intercourse has not been disputed from the side of the appellant and considering the evidence of the PW/14, the post mortem Doctor and the post mortem report, we have no doubt that said circumstance has been proved beyond all reasonable doubt.
(b) The contention of the learned counsel of the appellant that the corpse on which the post mortem was held was never identified before the PW/14 as that of the victim Babusona @ Hansa, is completely unfounded and not tenable. The particular portion of the post mortem report, Ext.-7, specified for noting the name, sex, age and caste and to which our attention has been drawn by the learned counsel for the appellant, clearly shows, the identity of the victim was very much recorded there and is reproduced below, in verbatim, "Unknown, since known as Babusona @ Hansa, Hindu male aged about 8-10 years."
It be added, according to the PW/14, Autopsy Surgeon the dead body was brought and identified to him by the constable Rasomoy Mondal and neither during his cross-examination nor in the examination of the appellant under section 313 CrPC such fact was disputed.
Therefore, the circumstance that the PW/14 holding postmortem on the dead body of Babusona @ Hansa, gave the above findings stand established.
(c) The prosecution case after their second marriage, the appellant and the PW/1 Mamata Halder started residing together, at Chaitanyabad, Purba Jadavpur, Kolkata, in a rented accommodation as husband and wife, with the deceased Babusona, a son of PW/1 by her first husband and Susanta, a male child born out of their second marriage, although has been claimed to be absolutely false by the counsel of the appellant and by him during his examination under section 313 CrPC but on consideration of the evidence of the PW/2 Lila Sardar, PW/3 Sumitra Mondal and PW/5 Somnath Saha, in their entirety, we however found the said circumstance has been proved undoubtedly.
The PW/2 Lila Sardar was declared hostile during trial. However, as the law stands, the entire evidence of a prosecution witness never completely get excluded or washed off, merely because such witness is declared hostile and that part of the version of a hostile witness can very well be accepted by the court, which never goes against the prosecution case and on a close scrutiny is found to be dependable (Sat Pal vs. Delhi Administration, AIR 1976 SC 294; Syad Akbar vs. State of Karnataka, AIR 1979 SC 1848; State of Uttar Pradesh vs. Chet Ram and Others, AIR 1989 SC 1543). It be noted that the PW/2 in her evidence supported the prosecution case and in her evidence stated that PW/1 Mamata Halder was her neighbour and she used to stay at a rented accommodation with her husband, the appellant (identified him on the dock) and her two children and the deceased Babusona was her elder son. Her such evidence was neither disputed nor challenged during the cross-examination of the PW/2 by the defence. Similar, was the evidence of the PW/3 Sumitra Mondal and according to her PW/1, her husband, the appellant (identified on dock) and their two children, elder one Babusona (deceased) were residing together in a rented accommodation near her house. During the cross-examination by the defence, PW/3 disclosed that the rental accommodation of the PW/1 was about 25/30 cubits away from her house. There was no further cross-examination of the PW/3 to demolish her credit on this score. The PW/5 Somnath Saha, a neighbour of the appellant and the PW/1, Mamata Halder also lent support to the case of the prosecution.
(d) The circumstance, after the PW/1 gave birth to a male child Susanta, in her wedlock with the appellant, the appellant started misbehaving with the deceased Babusona, her son of the first marriage also stands proved beyond any shadow of doubt by the evidence of the PW/1 Mamata herself. She categorically deposed as regards to the same in her examination in chief and when was suggested during her cross-examination about her non-disclosure of such facts in her written complaint, she denied such suggestion.
Now, from the perusal of the FIR, we find that the factum of the prosecution case that the appellant did not like victim Babusona and used to beat him frequently, was very much there, therefore, as regards to this circumstance neither there is any omission nor any contradiction so far that relates to the evidence of PW/1. We further find it went unchallenged as claimed both by the PW/1 and the Investigating Officer of the case PW/7 that during the course of investigation she was examined by the police twice. However, no effort has been made from the side of the defence to discredit the PW/1 that in her statement made to the police, after lodging of FIR, nothing was referred as regards to the same. By no stretch of imagination, it cannot be held, the appellant disliked Babusona and used to misbehave and beat him, is a new story introduced for the first time in the court.
(e) Another very crucial circumstance, pitted against the appellant, that according to the evidence of the PW/1 Mamata Halder, on the date of the incident, at around 1.30 p.m. he went out with the victim boy Babusona, in his bicycle and when he returned in the evening, victim was not with him and on being asked by PW/1, he gave evasive answers. We find during the lengthy cross-examination of the PW/1, neither any contradiction nor any omission was surfaced as regards to her evidence in chief, on this point.
The learned counsel of the appellant vehemently contended that the said witness in her cross-examination admitted at that relevant period, she used to work as a domestic help at different houses and at around 7.30 in the morning she used to go out and return at around 4 pm in the afternoon, therefore, she could not have any direct knowledge, if at all the appellant left with the victim at around 1.30 pm on that day. It is true that PW/1 in her cross-examination admitted that she used to remain out from 7.30 am to 4 pm for her days work but there was no material to show that on that particular day also the same routine was followed by her and she was not present in her house, when the appellant left with the victim boy in his bicycle. Except suggesting the PW/1 that her such evidence is not true nothing could be brought out from her cross- examination by the defence to discredit her. We further find from the evidence of PW/3 Sumitra Mondal on the day of the incident the appellant with the victim Babusona left his house in his bicycle in the morning and defence neither have challenged such evidence of the PW/3 nor even suggested that her such evidence was not true. We therefore not inclined to give any importance to the contention of the learned advocate of the appellant. The evidence of PW/1 Mamata Mondal is fully corroborated by her close door neighbour PW/3 Sumitra Mondal.
On the face of the evidence as aforesaid we have no reason to discard the prosecution case that on the date of the incident the appellant with the victim boy went out in his bicycle around noon and the victim never returned home and thereafter he was found killed and accordingly the circumstance under consideration is found to be established.
(f) The prosecution examined PW/8 Kuber Mondal to prove the circumstance that on the date of the incident the appellant and the victim were found together with a bicycle near Dhapar math and on the next day the victim was found lying murdered in a nearby field. The PW/8 Kuber Mondal identified the appellant both in T.I. Parade and in court during the trial as the person whom he saw with a boy on that day. It is true during the trial it was not proved the boy who was found in the company of the appellant was the victim Babusona. We find the photograph of the dead body of the victim Babusona was not exhibited during trial and it was never proved by the PW/8 that the photograph of the dead body was that of the boy, whom he found in the company of the appellant on that day. Therefore the evidence of PW/8 Kuber Mondal cannot be considered to be a circumstance of 'last seen together'.
It is beyond controversy that the prosecution has aptly established beyond any shadow of doubt that on the day of incident, from which the victim was found missing, at around afternoon the appellant was found by the PW/8, with a boy of same age group as that of the victim Babusona with a bicycle at a place, closed to the spot, where the dead body of the victim was discovered on the next day.
Since on evidence that the above circumstances against the appellant is proved, according to the provisions of section 106 of the Evidence Act, it is now for the appellant to explain who was the boy with whom he was found on that day at a place near to the place, where on the next day the victim Babusona was found lying murdered, which was within his special knowledge.
No explanation was forthcoming from the side of the defence and the appellant in his examination under section 313 CrPC, when a question relates to such circumstances was put to him claimed, before T.I. Parade he was shown to the witness at the Police Station. However, from the evidence of the PW/13, Judicial Magistrate held the T.I. Parade, we do not find any such complaint was made to him and during the cross-examination of PW/8 it was suggested to him that police had shown him the photograph of the accused before holding T.I. Parade which he denied and against such cross-examination, the said witness, on the other hand, disclosed the photograph of the deceased was shown to him. While it was suggested to the PW/8 Kuber Mondal, during his cross-examination that before T.I. Parade, police identified the appellant to him by showing his photograph but in his answer during his examination under section 313 CrPC, the appellant claimed that he was shown to the PW/8 at the Police Station. The stands taken by the defence are self contradictory, accordingly, such plea of the appellant deserves no credit. Therefore, the fact remains the appellant gave no explanation who was the boy with him as was found by the PW/8 on the previous afternoon near the spot where victim was found lying murdered although same was within his special knowledge and his such failure certainly goes against him.
During his cross-examination, when the witness was brought close to the appellant, on the dock, the PW/8 admitted that the appellant had a cut mark on his left cheek. It appears from the trend of cross-examination of the said witness, it was the defence case at the time of T.I. Parade, a tape was pasted on the left cheek of the appellant, which enable the said witness, the PW/8 to identify him and when the same was suggested to the PW/8, he denied the same. In this regard it be noted in his evidence PW/13, the Judicial Magistrate, who held the T.I.Parade categorically stated that no special identification mark was visible on the body of the suspect that is the appellant. That evidence was never challenged far less demolished. We further find during the T.I. Parade, the PW/8 identified the appellant from a distance of 12 cubits but to show the appellant had a cut mark on his left cheek the witness had to be brought near to the dock, which goes to eliminate every possibility even if, at the time of T.I. Parade the appellant had a cut mark on his left cheek, that was not visible from the distance the PW/8 identified him. It may further be noted during his examination under section 313 CrPC, accused had never claimed that he was identified by the PW/8, because such a tape was pasted on his left cheek nor because he had a cut mark there.
Furthermore, the T.I. Parade of the appellant was held on December 10, 2007 and the PW/8 was cross-examined on September 2, 2013, nearly 5 years 9 months after and there was nothing to show, such mark on his left cheek was not due to any injury sustained by the appellant during that period.
The failure of the defence to satisfactorily account for who was the child found by the PW/8, in the company of the appellant at a place, close to the field where the dead body of the victim Babusona was found lying killed, cannot by itself is sufficient to reach to a conclusion of the guilt of the appellant but the same can very well be accepted as a strong incriminating circumstances against him.
(g) It be noted the learned counsel for the appellant vehemently contended that although according to the prosecution case after suspicion arose, the appellant was confined by the local people and thereafter handed over to the police, but not a single person was examined to support such claim, of course non-examination of those witnesses is a clear lapse on the part of the Investigating Officer, but for which the prosecution case, if found to be otherwise acceptable against the appellant, cannot be discarded. So far as the seizure the bicycle from the house of the appellant is concerned, on the face of the evidence of the PW/1, when the appellant returned in the evening, the bicycle was not with him, in our opinion such discrepancy, if at all, is quite minor and feeble, the same needs no importance. It was one of the contention of the learned counsel of the appellant admittedly the FIR was recorded at around 2.25 pm on November 27, 2007 vide Ext.1, where it was disclosed that the victim was still missing, however, from the seizure list Ext.I relating to the seizure of wearing apparels of the victim, it was found that the PW/1, the maker of the FIR, identified the same to be that of her son, deceased Babusona and such seizure was made between 12.35 to 12.55 hours, therefore, while lodging the FIR, it was very much known to her that the victim was killed still she disclosed that he was missing which creates doubt as to her credibility. In this regard, it was then added by the learned counsel of the appellant with reference to the cross-examination of the PW/1 that according to her, she saw the dead body of her son and complaint was lodged on the same day within half an hour from seeing the dead body.
So far as his contention with regard to the seizure list is concerned on perusal of the same, we find it was quite clear on the face of the same, the PW/1 was not a witness to the seizure, but after seizure only identified those wearing apparels as that of her son. It is also her categorical evidence that subsequent to lodging of the FIR, she got the information about the discovery of the dead body of her son and seizure of his wearing apparels and after identifying those wearing apparels as that of her son victim Babusona, she put her signature on the seizure list.
We, however, do not incline to give any importance to such submissions of the learned counsel of the appellant for the simple reason, even assuming the FIR was lodged after discovery of the dead body of the victim if not in the FIR such fact is disclosed and it was claimed the victim was still missing, in no way that would benefit the prosecution case. Even if this discrepancy touches the credibility of the PW/1 for stating in her FIR that the victim was still missing although his dead body was already discovered that would not by itself reduce her entire evidence and the prosecution case liable to be rejected, if is otherwise found to be free from any doubt.
12. Now, from the findings as above, the following incriminating circumstances found established against the appellant beyond all reasonable doubt,
(i) During postmortem on the dead body, which was identified to be that of victim Babusona, it was found that the victim suffered a homicidal death and the condition of his anal passage is consistent with a conclusion that the deceased was subjected to regular carnal intercourse.
(ii) This was a second marriage between the PW/1, Mamata Halder and the appellant and after marriage, they were residing together at Chaitanyabad, Purba Jadavpur, Kolkata, in a rental accommodation as husband and wife with deceased Babusona, a son of PW/1 by her first husband and Susanta, a male child born out of their second marriage and corroborated by the evidence of PW/2 Lila Sardar and PW/3 Sumitra Mondal and PW/5 Somnath Saha, who were staying near to their house.
(iii) After PW/1, Mamata Halder, gave birth to a male child Susanta in her wedlock with the appellant, the appellant started misbehaving with the victim boy Babusona as he did not like that he would stay with them and used to frequently beat him.
(iv) On the date of the incident, at around 1.30 p.m., the appellant along with the victim boy Babusona went out in his bicycle but when returned in the evening, the victim boy was not with him and he gave evasive answer as regards to his whereabouts.
(v) On the date of occurrence, on or about noon, the appellant with the victim in his bicycle left house in presence of the PW/1, Mamata Halder and the PW/3, Sumitra Mondal, a neighbour, found them leaving together.
(vi) The PW/8, Kuber Mondal is the witness, who identified the appellant in the T.I. parade as the person whom he saw with a boy of same age group, as that of the victim Babusona with a cycle near Dhapar math on the day from which the victim Babusona was missing at around afternoon.
(vii) Thereafter on the next day, victim, Babusona was found lying murdered at a nearby field closed to the place where on the previous day the PW/8, Kuber Mondal spotted the appellant with a boy of same age group and a cycle.
(viii) No explanation is forthcoming from the appellant who was the boy found in his company by the PW/8, Kuber Mondal, although such fact was within his special knowledge.
(ix) According to the provision of section 106 of the Evidence Act, when any fact is proved on evidence against an accused and such fact is within his special knowledge, it is for him to explain the same.
13. After above, we now propose to consider whether one other alleged incriminating circumstance relied upon by the prosecution against the appellant, is of any probative value or not. The PW/1 Mamata Halder in her evidence claimed that her son victim Babusona before his death told her that the appellant used to behave with him as husband and wife and sexually assaulted him. It was her further evidence that when she asked the appellant about such facts, he confessed his guilt and told her that he will not do such thing any more. We find from the unchallenged evidence of the PW/14, the Autopsy Surgeon that on examination of the anal passage, it was found that the same was consistent with the facts of regular carnal intercourse. However, the learned counsel for the appellant vehemently contended since such assertion was not found place in the First Information Report, the maker whereof is the PW/1 herself, the same being an omission of vital fact ought to be kept out of consideration. He further contended that what victim Babusona told PW/1, his mother, about the alleged carnal intercourse perpetrated upon him by the appellant cannot be admitted in evidence as his dying declaration because same was neither the cause of his death nor is a circumstance of the transaction which resulted in his death.
(i) Against the next circumstance that the victim Babusona @ Hansa a few days before his death told his mother, PW/1, Mamata Halder that the appellant used to do bad work with him like husband and wife for many times and when PW/1 asked the appellant about the same, the appellant confessed his guilt and told her that he will not do such thing any more, it was vehemently urged from the side of the appellant such assertion in court by the PW/1 cannot be acted upon since same was not found placed either in the First Information Report, the maker whereof, the PW/1 herself and also in her statement recorded under section 161 CrPC.
We, however, going through the evidence of PW/1, find that during her cross-examination PW/1 was suggested by the defence about not stating such facts in the FIR. It is true, in the FIR we do not find any mention about such facts. We have herein above already noted both according to the PW/1 and the Investigating Officer of the case, PW/7 after lodging of FIR and during investigation, she was examined at least for twice and her statement was recorded. However, she was not cross- examined by the defence on the score that no such statement was made by her to the police. Although the Investigating Officer of the case was cross-examined and it was suggested to him that no such statement was made by the PW/1 to him and the Investigating Officer answered that PW/1 did not tell him that she was told by the victim that appellant used to behave with him as husband and wife, then volunteered and stated that PW/1 disclosed that she was told by the victim that the appellant used to make sexual assault on him. Since the PW/1 was not contradicted in accordance with the procedure prescribed for contradicting a witness by his previous statement under section 145 of the Evidence Act, the contention raised from the side of the appellant stand repelled. However, fact remains to the Investigating Officer of the case, PW/1 disclosed that the victim told her that the appellant used to assault him sexually, but we are not going to take into consideration such evidence of the Investigating Officer of the case for the simple reasons no statement made to a Police Officer by a witness and recorded under section 161 CrPC, is not admissible in evidence, being hit by section 162 CrPC.
Be that as it may for the sake of argument if it is held that there is no legal restriction or impediment to take into consideration the same, then in that case also on the face of what have been stated by the Investigating Officer of the case, as above, clearly indicates the allegation of sexual assault upon the victim by the appellant was very much made to him by the PW/1. We once again make it clear that in our decision making process as to the fate of this appeal, we have completely excluded from our consideration what was stated by the Investigating Officer of the case in his cross-examination being the fact told to him by the PW/1 and ensure that would not have any impact in this judgement.
Since there was no cross-examination whether such fact was told to the Investigating Officer of the case by the PW/1 in her statement recorded twice under section 161 CrPC, we are unable to accept the contention of the learned advocate of the appellant and held that there was omission. At this juncture it may be noted it was the unchallenged evidence of the PW/14, the Autopsy Surgeon, that during post-mortem of the dead body of the victim Babusona and on the examination of his anal passage, it was found that he was subjected to carnal intercourse regularly.
(ii) Before parting with the above points, we must record much has been argued from the side of the defence that the above facts not being disclosed by the PW/1 Mamata Halder in the First Information Report and such omission being on a very vital and material aspect of the prosecution case, the same is to be left out from consideration in deciding the guilt of the accused.
In this regard the learned counsel of the appellant relied on the decision of the Hon'ble Supreme Court in the case of Ramkumar Pandey vs State of Madhya Pradesh reported in AIR 1975 SC 1026 and referred what have been observed in paragraph 9 thereof, which is quoted below, Paragraph 9: No doubt, an FIR is a previous statement which can, strictly speaking, be only used to corroborate or contradict the maker of it. But, in this case, it had been made by the father of the murdered boy to whom all the important facts of the occurrence, so far as they were known up to 9.15 p.m. on 23- 3-1970, were bound to have been communicated. If his daughters had seen the appellant inflicting a blow on Harbinder Singh, the father would certainly have mentioned it in the FIR. We think that omissions of such important facts affecting the probabilities of the case, are relevant under section 11 of the Evidence Act in judging the veracity of the prosecution case.
He also relied on a very recent decision of the Honble Supreme Court in the case of Sujit Biswas vs State of Assam reported in (2014) 1 SCC (Cri) 677, where the Apex Court re- affirmed its earlier view.
(iii) Undoubtedly, there is a clear omission to refer what was told to the PW/1 by the victim boy about the sexual assault perpetrated upon him by the appellant and the confession of the appellant. Now the question arises for our decision whether such omission has any tell on the veracity of such facts. The FIR of this case was lodged by a mother whose minor son aged about 8-10 years was missing for a day and due to that she must be in extremely perturb and dazed at her wits end. In the FIR she has categorically disclosed whom she suspected behind such disappearance of her son and as to why. She also disclosed soon before disappearance of the victim he was accompanied by the appellant for a stroll and when the appellant returned home alone, no plausible explanation was forthcoming from him. At this juncture, omission to mention an event as above, in the FIR would not touch her credibility as regards to the same. FIR is not encyclopedia of the prosecution case. It is neither customary nor necessary to mention every minute past detail in the FIR, although relevant. It is an unchallenged evidence that after lodging of FIR and soon after discovery of the dead body, the maker thereof (PW/1) was examined by the Investigating Officer of the case but prosecution in her lengthy cross-examination could not point out that such detail was also missing in her statement recorded by the police subsequent to the lodging of the FIR. We, once again record in our considered opinion the alleged omission in the FIR does not affect the veracity of the prosecution case on that score and consequently the question of discarding such evidence does not at all arise.
(iv) The next question now arises for decision, whether what was told to the PW/1 by the victim about the unnatural offence committed against him by the appellant, can be admitted in evidence as his dying declaration or not.
A three Judges Bench of the Hon'ble Apex Court in the case of Sharad Birdhichand Sarda vs State of Maharashtra reported in AIR 1984 SC 1622, has explained the nature of the circumstances amounts to dying declaration as contemplated by section 32 of the Evidence Act and observed as follows, "................... the words 'resulted in his death' do not mean 'caused his death'. Thus, it is well settled that declarations are admissible only in so far as they point directly to the fact constituting the rest gestae of the homicide: that is to say, to the act of killing and to the circumstances immediately attendant thereon like threats and difficulties, acts, declarations and incidents, which constitute or accompany and explain the fact or transaction in issue. They are admissible for or against either party, as forming parts of the rest gestae".(Para-10) Then after review of the leading authorities on the question, what amounts to dying declaration and taking into account the language of Section 32 (1) of the Evidence Act, in paragraph 21 thereof, the Supreme Court, amongst other, laid down, The test of proximity cannot be too literally construed and practically reduced to a cut-and-dried formula of universal application so as to be confined in a strait-jacket. Distance of time would depend or vary with the circumstances of each case. For instance, where death is a logical culmination of a continuous drama long in process and is, as it were, a finale of the story, the statement regarding each step directly connected with the end of the drama would be admissible because the entire statement would have to be read as an organic whole and not torn from the context. Sometimes statements relevant to or furnishing an immediate motive may also be admissible as being a part of the transaction of death. It is manifest that all these statements come to light only after the death of the deceased who speaks from death. For instance, where the death takes place within a very short time of the marriage or the distance of time is not spread over more than 3-4 months the statements may be admissible under S. 32 [Sub-Para (2) of Para 21].
The above principle was followed and fully endorsed by another three Judges Bench of the Apex Court, in the case of Kans Raj Versus State of Punjab reported in AIR 2000 SC 2324. At the same time in its aforesaid decision in the case of Kans Raj Versus State of Punjab (supra), the Apex Court also approved the following observation made by another bench in the case of Ratan Singh Versus State of Himachal Pradesh reported in AIR 1997 SC 768, the same is quoted below, "It is enough if the words spoken by the deceased have reference to any circumstance which has connection with any of the transactions which ended up in the death of the deceased. Such statement would also fall within the purview of Section 32(1) of the Evidence Act. In other words, it is not necessary that such circumstance should be proximate, for, even distant circumstances can also become admissible under the sub-section, provided it has nexus with the transaction which resulted in the death."
(v) Therefore, according to the observation, where death is a logical culmination of a continuous drama long in process and is, as it were, a finale of the story, the statement regarding each step directly connected with the end of the drama would be admissible because the entire statement would have to be read as an organic whole and not torn from the context. Sometimes statements relevant to or furnishing an immediate motive may also be admissible as being a part of the transaction of death. It is manifest that all these statements come to light only after the death of the deceased who speaks from death.
And, it is enough if the words spoken by the deceased have reference to any circumstance which has connection with any of the transactions which ended up in the death of the deceased. Such statement would also fall within the purview of Section 32(1) of the Evidence Act. In other words, it is not necessary that such circumstance should be proximate, for, even distant circumstances can also become admissible under the sub-section, provided it has nexus with the transaction which resulted in the death.
(vi) In view of the legal position as above, the statement of the deceased Babusona made to his mother before his death are admissible in evidence under section 32 of the Evidence Act.
14. Even assuming such statement of the victim Babusona is not admissible as dying declaration still it cannot be overlooked that the extra-judicial confession of the appellant as regards to commission of sexual assault upon the victim and his assurance to the PW/1 that he will not repeat the same in future, in fact, went unchallenged. Therefore, such facts can always be considered to be an incriminating circumstance against the appellant.
15. Considering the circumstances we noted herein above in paragraph 12, we have no doubt that prosecution have able to prove that it is the appellant who is the author and none else other than he killed the victim Babusona and then to cause disappearance of the evidence of murder abandoned his dead body in a remote field. Our findings receive further supports as to the guilt of the appellant from the circumstances noted in paragraph 13 and 14 herein above. Those circumstances have also been proved by the prosecution beyond all reasonable doubt.
Having regard to above, the trial court was fully justified in convicting the appellant for the offences punishable under section 302/377/201 IPC respectively and such order of conviction deserves no interference.
16. Now coming to the question of sentence, we find the death sentence was awarded against the appellant by the trial court observing as follows,
(a) The victim was helpless child on whom the accused being his stepfather was in a dominating position.
(b) The accused to fulfil his lust by making carnal intercourse on him for several days and taking advantage of his position in a very cold and pre-planned way took him away and for concealing the evidence of unnatural offence killed him brutally by strangulation with ligature.
(c) After committing the murder, he returned home in the evening and behaved normally with the unfortunate mother of the helpless boy.
(d) The conduct of the accused proves that he is a man without natural instinct and cannot be rectified and reformed and free movement of the accused in the society at large will be dangerous. If this kind of crime is treated leniently, wrong signal will go to the society that there is no proper justice is available in our society.
Undoubtedly, the crime committed by the appellant was grave, serious and heinous. He had a dirty and perverted mind and no control over his carnal desire. The victim is a helpless boy aged about 10-12 years and the step son of the appellant and not only the appellant had carnal intercourse against the order of nature with the victim boy regularly but eliminated him to cause disappearance the evidence of his misdeed. Nevertheless, it cannot be held that he is such a dangerous person to spare his life would endanger the community and would constitute a continuing threat to the society. Accordingly, we are of the opinion, if this case is now dealt with in the light of the principle laid down by the Hon'ble Apex Court in the case of Sangeet and another vs. State of Haryana reported in (2013) 2 SCC 452, and sentenced him to imprisonment for 25 years, instead of awarding death sentence, the justice will be subserved.
In the result, this appeal stands partly allowed. While the order of conviction is upheld, the death reference is rejected. Sentence of death is reduced to minimum sentence of 25 years.
Office is directed to send down the LCR together with the copy of the judgment to the court below at once.
Urgent xerox certified copy of this order be given to parties, if applied for, as early as possible.
(Ashim Kumar Roy, J.) I agree.
(Ishan Chandra Das, J.)