Calcutta High Court
Sri Ashim Dutta Alias Nilu vs State Of West Bengal on 13 May, 1998
Equivalent citations: (1998)2CALLT338(HC), 1998(2)CHN261
JUDGMENT D.P. Sarkar-II, J.
1. This case tells the sad tale of Freudian Furry, that cut short the blooming life of an innocent hapless little girl only at the age of 10 years.
2. The appellant, admittedly, was an armed Constable attached to the 4th armed battalion of West Bengal Police, posted to Raiganj. He used to live in the quarters allotted to him in the police barrack. On the fateful day i.e., on 26.10.95 at about 6.00 PM, as per the prosecution case, the appellant was standing in front of the shop of P.W. 10-Madhusudan Chakraborty. P.W.9 viz. Kaushalwa Roy Was also there, when the victim girl named Biva Rajak came to that shop to purchase 'khaini' for her father. The appellant purchased some 'Chanachur" and requested the shop-keeper to supply 'khaini' to Biva first. As soon as 'khaini' was purchased, Biva started for her home, but the accused accompanied her and within the hearing of P.W.9 and P.W. 10 requested Biva to take some 'chanachur* and to accompany him to his quarters. Biva did not agree. Then the appellant caught hold of Biva by her hand and tried to drag her. But Biva could manage to disengage her hand. At that point of time there was loadshedding. As such P.W. 9 & P.W. 10 could not say what happened thereafter.
But Biva-the victim girl and other relations searched for her at the shop and to other places. Lastly the victim's father lodged a missing diary at Raigunj PS. Serious tension was prevailing at the locality. The suspicion of the local people fell on the convict-appellant who was last seen in the living company of the victim girl. Ultimately, police came and took the convict-appellant to the police station for interrogation. Before the members of the public and the police the convict appellant admitted all the facts and disclosed that the dead body of the victim girl was thrown into the pond at the back of his quarters. Pursuant to such statement, the dead body was recovered. The lower part of the dead body was completely naked and blood was oozing out stilt from her private part. The post-mortem examination disclosed, that the girl was raped and strangulated to death. The convict-appellant had also some scratching wounds on his face and shoulders and bleeding injury on the middle finger of his left hand. He received treatment for those injuries from a local private doctor (P.W.11) at about 8.00 PM on 26.10.95. He also received a toxide injection. Thereafter the police obtained a complained in writing from the father of the victim and drew up the formal FIR, searched the quarters of the convict-appellant and recovered the under-garment and the hawalf chappals of the victim girl which were identified as that of the victim by her father i.e., PW7. Blood an bloodstained earth were collected from the wall made of cement and sand from the balcony of the convict. The police also seized some other articles under different seizure lists in presence of the witnesses.
3. During investigation the police examined as large number of witnesses, drew up sketch map of the place of occurrence: collected the postmortem report and forensic reports and finally submitted charge-sheet against the convict appellant under sections 363/366/376/302/201 of the IPC.
4. The learned Sessions Judge at the time of trial framed charges accordingly and on completion of the trial was pleased to find the convict-appellant guilty to the charges, and accordingly convicted him and sentenced him to death for the offence under section 302 IPC. No separate sentence was passed for the offence under section. 363/376/366/201 IPC.
5. On being aggrieved by the order of conviction and the sentence of death the present two appeals have been filed by the convict-appellant-one from the jail custody and other in regular course on the grounds, inter alia, that the learned trial court committed error in appreciating the evidence on record and in the application of law. According to the convict appellant he was absolutely innocent and ought to have been acquitted by the learned trial court. The death reference was forwarded by the learned trial Judge under' section 366 Cr.P.C. Accordingly, both the appeals and the death Reference are taken up together for the sake of convenience.
6. The learned Advocate for the convict-appellant has placed his arguments for several days and tried to point out some contradictions in the statements of the principal witnesses viz. P.W. 7, 9& 10. I have carefully noted the discrepancies pointed out by him. But hardly I can agree with him that those discrepancies or contradictions are strong enough to cut at the root of the prosecution case. That apart, the witnesses to the facts are all rustic people and their evidence should always be accepted within the guidelines as laid down by the Supreme Court in its decision . The apex court has laid down that in case of rustle witnesses "Variances of the fringes, discrepancies in details, contradictions in narrations, and embelishments in inessential parts cannot militate against the veracity of the core of testimony, provided there is impress of truth and conformity to probability insubstantial fabric of testimony delivered". Therefore, the minor contradictions or inconsistencies as pointed out by the learned advocate for the convict appellant can hardly overcome the solid evidence that has been adduced before the learned trial court against the convict.
7. There is no doubt, that the entire case stands on circumstantial evidence. PW 9 and PW 10 saw the convict to accompany the victim from the shop of PW 10. We could also know from their evidence that the convict requested the victim to go to his quarters and to take some 'chanachur'.
In short, it is clear from the evidence of those two witnesses that the victim was last seen living in the company of the convict. Latter on, the dead body of the victim girl was recovered from the pond at the back side of the quarters of the convict and that also in pursuance to the statement made by the convict to the police in presence of the public. This statement to the police leading to the recovery of the dead body of the victim is admissible in evidence. In the aforesaid back ground, the question becomes very relevant as how could the knowledge that the dead body was thrown into that pond? This fact provides a very strong circumstances specialty when coupled with the fact that he was seen in the company of the victim last.
8. Again, the recovery of the under garments and the chappals of the victims girl from the quarters of the convict could not be explained satisfactorily by the convict. How those articles came to his room?
9. The convict also could not explain the injuries on his person for which he received treatment at 8.00 PM. on that very night from a private local doctor i.e. hardly within two hours after the convict was found last in the company of the victim girl. According to the doctor the bleeding injury on his middle finger was likely to be caused due to bitting, although the convict stated to the Doctor that it was a self inflicted knife injury, during the progress of the trial and during the examination under section 313 Cr.P.C the convict tried to shift from his earlier stand by stating that the injuries on his person were caused due to assault by the public. But no-where we find any such statement by any witness or by the police that at any time the convict was assaulted by the members of the public or he received any medical treatment for such injuries after his arrest. Even for the sake of argument, if we accept that he was assaulted by the public, yet we cannot think what promoted any member of the public to bite on the middle finger. There is no mark of punching, no other mark of injury caused by assault. Naturally, the explanation as given by the convict for the presence of those injuries on his person is absolutely untrustworthy,
10. The post-mortem report shows that the victim girl was raped and then strangulated. The F.S.L. report disclosed the sample of blood collected from the balcony of the convict was human blood. There is no explanation how human blood found place in the balcony of the convict.
11. Now. If the factual evidence be arranged methodically it presents an unbroken chain of circumstances irresistibly pointing the needle of guilt to the present appellant as the sole author of the crime.
i) Firstly, that the victim was last seen living in the company of the convict.
ii) Secondly, that the victim was not traceable even on extensive search since that time.
iii) Thirdly, the dead body of the victim girl was recovered from the pond at the back of the quarters of the convict in pursuance to the statement made by the convict to the police.
iv) Fourthly, no trustworthy explanation could be offered by the convict regarding the injuries found on his person.
v) Fifthly, sample of blood collected from the balcony of the convict was found to be human blood by the FSL.
vi) Sixthly, the convict on the self-same night at about 8.00 PM attended the chamber of a private doctor (PW 11) and got treatment for the injuries on his person including the bleeding injury on the middle finger of his hand.
vii) Seventhly, the recovery of the under-garment and hawal chappals of the victim girl, identified by her father, from the bed-room of the convict-appellant for which the convict could not give any explanation as to how those articles came into his room.
12. Of course, it 19 submitted by the convict that those articles were planted by the police into his room or by somebody else as the room was open, when he was taken to the police station for interrogation. But such explanation has been negatived by the evidence of the witnesses. From the oral evidence it is established that the key of the room of the convict was with his father who opened it on demand by the police in presence of the public.
13. The convict also tried to assail the evidence of PW 9 & 10 on the ground that they falsely and out of grudge deposed against him. Because, the convict one day found PW 9 & 10 in a compromising position and as he threatened to disclose that fact, out of that grudge they made statement falsely implicating him. This suggestion is wild and unreasonable. Because if actually PW 9 & 10 were found in a compromising position within the knowledge of the convict, these two PWs would try to oblige the convict, lease the convict disclosed the fact to the other public.
14. The convict also raised the plea that the examination under section 313 Cr.PC has not been properly done by the learned trial court. After going through the examination under section 313 Cr.PC as recorded by the learned trial court it appears to be true that the examination under section 313 Cr.PC could not be done by the learned Judge in proper manner. The learned Judge put the questions to the convict in an elaborate form and not in specific form. But all the facts which were brought on record by the prosecution against him were put to the convict and there was no chance of prejudice being caused.
15. The purpose of examination under section 313 Cr.PC is to explain the material evidence that has been adduced by the prosecution against the accused facing the trial in order to provide a chance to give his explanation regarding those material evidence. So, unless the explanation under section 313 Cr.PC is done in a perverse way, there cannot be any prejudice caused to the convict and unless any prejudice is caused, the trial should not be vitiated.
16. Thus, after careful consideration of the evidence on record and the material facts, post-mortem report. FSL report etc. as well as the sequence of circumstances, one followed by the other, hardly there is any missing link in the chain of circumstances which irresistibly lead to the conclusion of the convict-appellant. Accordingly, the order of conviction for the offences under sections 363/366/376/302 & 201 IPC is affirmed.
17. The next crucial part of the trial is the question of punishment. The learned trial Judge passed the Death Sentence under section 302 IPC. But not separate sentence was passed for the other offences.
18. The age-old theories of punishment provide i) deterrent punishment, ii) retributive punishment and iii) reformative punishment. Both deterrent and retributive punishment aim at prevention of the recurrences of the offences by others passing exemplary punishment for a particular offence. But the civilization and the societies are progressing rapidly. There is advancement of science and technology. The literate people and the experts in different branches of knowledge started thinking in a different ways. Eye for an eye, and tooth for a tooth are no more considered as the correct approach towards the criminals. Such principle may perpetuate the rule of the Jungle but cannot ensure the rule of law. Extensive research work is going on in the field of Criminology, Psychology, Sociology, etc. and the experts are trying to find out the inter-connection amongst those three branches at least. With the change in the society, there is concomitant change in the law also. It is now well established that abnormal mental state is linked with the crime and some of the experts are of the opinion that propensity to commit crime is a disease. Gandhiji wrote in 'Harijan' that prisons should be converted into hospital because, the criminals are sort of patient suffering from mental abnormality. Victor Hugo wrote "We shall look upon crime as a disease. Evil will be treated in charity instead of anger. The cross shall displace scaffold".
19. The evaluation of penal law in India so far as the punishment for murder is concerned shows that at the earliest stage there was no alternative punishment to death. Life imprisonment has been introduced later on. But the discretion was absolutely on the Judge who could chose between the 'death' and 'life'. The law as it stands at present provides that as punishment for death, life imprisonment should be the rule and death sentence should be an exception. Because, the law requires the trial Judge to record his reasoning for passing the death sentence instead of sentencing to life imprisonment and such reasoning in support of death sentence has to be approved by the higher court i.e., the High Court in every case under section 374 Cr.PC. But it does not mean that the death sentence has been abolished. The apex court of the land has removed the controversy by its decision that Death sentence should be passed only in the rarest of the rare case.
20. Against such background, we are to consider whether death sentence passed in the instant case against the convict appellant is justified and whether the instant case falls within the purview of the rare case.
21. The offences for which the convict was tried by the learned trial court are not punishable with death except the offence under section 302 IPC. The principal offence as we find from the facts of the case was rape. The convict appellant had no intention to murder the victim, but he was prompted by lust to rate the unfortunate victim girl, and that passion or desire or intention also cropped up on the sopt i.e. In front of the shop of PW 10 where the convict met the victim girl on the fateful day in the evening. Therefore, the act of rape was also not a pre-meditated act. It was a momentary impulse. The lust-loaded idea overpowered the normal judgement of the convict-appellant for the time being. He somehow managed to take the girl to his quarters and satisfied his carnal desire on the girl. But as soon as the act of rape was completed, the hard reality started in the face of the convict-appellant. At once it flushed in his mind that if the victim girl was allowed to survive she must disclose the heinous offence to her relations and members of the public, and the appellant would then be socially ostracized and legally prosecuted: not only that, he would lose his Job and social respectability. His family would face economic insecurity. All these factors weighed in the mind of the convict and promoted him to commit the murder of the victim girl by strangulation for his own protection and preservation. Although the offence of rape was committed under the spell of temporary abnormality yet the subsequent act of the convict reflects the normal desire of a person to protect himself against legal prosecution . and punishment. No normal human being would volunteer to disclose his offence and undergo punishment for the same.
22. The convict-appellant is not a habitual criminal or killer. He has got no criminal history. He has got no enemity with the father of the victim girl, that out of such enemity he committed the murder of the girl in order to feed fad his ancient grudge. Rather, we can safely conclude that no such incident would take place at all, had the victim girl been late to arrive at the shop of PW 10 or in other words if she had no meeting with the convict-appellant there at that time on that day.
23. Supreme Court in Shida Gonda case and Basanta Lakshmi More has discouraged imposition of death sentence when the convict is not an habitual criminal.
24. learned Advocate appearing for the State has submitted before us that it is a very heinous crime. A girl of ten years old was raped and murdered by the convict-appellant who himself is a police personnel. In this context we should not forget, that the offence was not done by the convict as a police officer. He was not on official duty at that time, nor offence was committed at the police station or any public place. The offence was committed at the house of the convict-appellant at a time when he was out of duty. Therefore, it is difficult to accept the force of argument of the learned Advocate for the State that death sentence is the appropriate sentence in the instant case. The learned Advocate for the Stale has referred to us decisions of the Hon'ble Supreme Court , and . In all these cases the convict-appellants committed rape on the minor girls and subsequently killed the victims of rape. The Supreme Court upheld the death sentences. But as I humbly understand, there cannot be any straight-jacket principle in the matter of passing a sentence. The facts of those cases are not identical, except, the broad facts, that minor girl was raped and murdered. In one of the reported cases the convict-appellant was a very closely acquainted person, whom the victim girl used to address as uncle and in another case the convict-appellant was the private tutor of the unfortunate minor victim girl.
25. the instant case, the convict-appellant did not enjoy any such fiduciary relationship with the victim girl. Whatever it may be, if the death sentence is confirmed in the instant case that will bring and end to another young life. The convict is only 32 years old and it is on record that he has got his wife, children and old parents. No doubt, he committed an offence which should be condemned by everybody, but the death sentence shall deprive his family and the dependants of their dally bread for good. On the other hand, it will put and end to the remorse, if any, in the mind of the convict. If the sentence of death is converted into life imprisonment the convict-appellant shall have to undergo imprisonment in the minimum for 14 years and during this long 14 years at every moment he is likely to be haunted by the shadow of the crime committed by him.
26. In short. It was not a pre-meditated rape followed by murder and the rape was committed on the impulse of the moment and in order to wipe out the evidence of rape, the convict-appellant wiped out the life of the victim from this world.
27. The Supreme Court in Gajendra Singh's case and in the case of State v. Ramji Das has similarly disfavoured the imposition of death sentence where the offence is not pre-meditated.
28. Accordingly, I think, that this particular case, in the particular facts and circumstances as discussed above, does not come within the purview of rarest of the rare case and the sentence of death, as such. Is not legally Justified. The convict-appellant instead of being sentenced to death is hereby sentenced to imprisonment for life.
Both the Criminal Appeals and the Death Reference Case are, accordingly disposed of.
S.K. Mookherjee, J.
29. I agree (with the conclusion).
30. Appeal and Death Reference case disposed of