Calcutta High Court (Appellete Side)
Debapriya Pal @ Debu @ Timpu vs State Of West Bengal on 11 April, 2011
Author: J. N. Patel
Bench: J. N. Patel
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In the High Court at Calcutta
Criminal Appellate Jurisdiction
Present:
The Hon'ble Justice J. N. Patel, Chief Justice
And
The Hon'ble Justice Ashim Kumar Roy
Death Reference 1of 2009
In connection with
CRA 258 of 2009
Debapriya Pal @ Debu @ Timpu
vs.
State of West Bengal
With
CRA 295 of 2009
Subhankar Sarkar @ Babu @ Tablu
vs.
State of West Bengal
For the Appellant : Mr. Sekhar Basu
in CRA 258 of 2009 Mr. Souvik Mitter
Mr. Rajdip Majumder
Mr. Kushal Mukherjee
For the Appellant : Mr. Y. Z. Dastoor
in CRA 295 of 2009 Ms. Devipriya Mitra
For the State : Mr. Asimesh Goswami
Mr. Swapan Kr. Mallick
Ms. Rajyasri Das
Heard on : 11.11.10, 24.11.10, 15.12.10, 20.12.10, 10.01.11,
11.01.11, 12.01.11, 01.02.11, 02.02.11, 14.02.11,
18.02.11, 21.02.11, 22.02.11, 23.02.11, 28.02.11,
14.03.11 & 15.03.11
Judgment on : 11.04.2011
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J. N. Patel, C.J. : These appeals are preferred by Subhankar Sarkar @
Babu @ Tablu and Debapriya Pal @ Debu @ Timpu who are charged for
having committed murder of Maya Sarkar, w/o late Hemchandra Sarkar
and her daughter Anusha Sarkar @ Guddu between the night of 26.9.07
and 27.9.07 and for causing disappearance of evidence in furtherance of
their common intention. They were found guilty and sentenced to death for
having committed offence under Section 302 IPC read with Section 34 and
also sentenced to suffer rigorous imprisonment for 7 years and to pay fine
of Rs. 1,000/- each, in default, simple imprisonment for 2 months for
offence under Section 201 IPC and sentenced to suffer rigorous
imprisonment for 7 years with fine of Rs. 1,000/- each, in default, simple
imprisonment for 2 months for committing offence under Section 380 IPC.
The appellant Debapriya Pal was further sentenced to 3 years'
imprisonment and fine of Rs. 1,000/-, in default, 2 months' simple
imprisonment for committing offence under Section 411 IPC. In addition
to these two appeals, we are also disposing of the reference made by the
learned trial Court for confirmation of their death sentence under Section
366 of the Cr. P.C. by this common judgment and order.
It is the prosecution's case that the appellant-accused Subhankar
Sarkar @ Babu @ Tablu had love affair with Anusha Sarkar @ Guddu
which was not approved by Smt. Maya Sarkar, mother of Anusha who
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advised Anusha @ Guddu to sever her relation with Subhankar Sarkar.
Subhankar Sarkar having found that Anusha Sarkar @ Guddu was
avoiding him tried to confront her on various occasions and even warned
her of dire consequences. As Anusha Sarkar @ Guddu did not respond to
Subhankar, Subhankar along with his friend Debapriya Pal @ Debu @
Timpu on the fateful day when Anusha's mother, i.e., Maya Sarkar was
alone in the house - 'Kalamban' in Air View Complex, P.S. English Bazar,
Malda, committed her murder and then waited for Anusha Sarkar @
Guddu to come and after she arrived, she was also brutally murdered by
them. On the next day, i.e., 27.9.07, in the morning when their maid
servant Saraswati Sarkar came to the house she saw the dead bodies of
Smt. Maya Sarkar and Anusha Sarkar @ Guddu in their bedroom with
bleeding injuries and raised an alarm. On hearing her cry, Nabarun Paul,
their driver, came into the house and saw the dead bodies. These two
servants informed the police, neighbours and relations of Smt. Maya
Sarkar. In the meantime, Ananya Sarkar, elder daughter of deceased
Maya Sarkar who was prosecuting her studies outside Malda was
informed. Sujit Sarkar, brother-in-law of Smt. Maya Sarkar, lodged a
written complaint of the incident to the English Bazar Police Station.
Police registered this case as E.B.P.S. Case No. 365/07 as an FIR for
offence punishable under Section 302 IPC. Police requisitioned police
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photographer and fingerprint experts, conducted the inquest over the dead
bodies and the same were sent for post mortem examination. Police
arrested the appellants-accused Subhankar Sarkar and Debapriya Pal as
suspects. On conclusion of the investigation, police charge sheeted the
appellants-accused for having committed offence under Sections
302/380/411/201/34 IPC.
In answer to the charge, the appellants-accused pleaded not guilty
and claimed to be tried. It was their case that they are innocent and have
been falsely implicated in the case.
During trial, the prosecution examined in all 38 witnesses and placed
reliance on various materials collected during investigation and the articles
seized from the place of occurrence, the fingerprints and chance prints
picked up from the place of occurrence, the report of the expert from the
fingerprint bureau, forensic expert and medical report.
On completion of the trial, the trial Court found the appellants-
accused guilty of having committed offence punishable under Sections
302/380/411/201/34 of IPC and after hearing the appellants-accused on
the point of sentence arrived at a finding that the murder of Smt. Maya
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Sarkar and Anusha Sarkar @ Guddu committed by the appellants-
accused, falls in the category of rarest of rare case and sentenced them to
death.
The learned counsel appearing for the appellants submitted that the
entire prosecution case is based on circumstantial evidence and the Trial
Court relied upon the circumstances such as motive which pertains to love
affair between the appellant Subhankar @ Babu @ Tublu which according
to the prosecution has ruptured with the intervention with Anusha's
mother as she did not accept such relationship due to which love-lost
Subhankar started threatening Anusha and her mother. The next is
regards the conduct of the appellants prior to the incident as according to
the prosecution in the evening of 26.09.2007 i.e. on the day of occurrence,
Subhankar and Debapriya were found proceeding towards Air View
Complex where the deceased Maya Sarkar and Anusha Sarkar live in their
house known as 'Kalamban'. The next circumstances being the recovery of
wearing apparels of the appellants-accused from their respective houses at
their instances and blood group of blood stains found on wearing apparels
of Subhankar match with blood group of the blood found on bed sheet
seized from the room where the dead bodies were found and blood group of
blood stains found on wearing apparels of Debapriya match with blood
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group of blood found on wearing apparels of Maya Sarkar and Anusha
Sarkar and also the recovery of the offending weapon i.e. knife at the
instances of the appellants-accused Subhankar and Debapriya. The next
circumstances being the specimen left palm print of accused Debapriya
match with the chance print found on a cello tape roll seized from the
place of occurrence.
Therefore, according to the Ld. Counsel appearing for the appellants-
accused, the prosecution has miserably failed to lead evidence that the
appellants-accused on the relevant time and date could have access in the
House of Smt. Maya Sarkar in the backdrop that the deceased were very
security conscious, a natural thing for two ladies living alone and,
therefore, the entry to the house was fully secured as they used to lock
collapsible gates and two wooden doors and persons with whom the
deceased were familiar and whose identities were verified were permitted to
enter in the house. It has come to the notice of the Investigating Officer
that there was no sign of forcible entry and, therefore the possibility of
Smt. Maya Sarkar permitting the appellants-accused to enter into the flat
is also ruled out in view of the strained and inimical relationship with the
appellants-accused and, therefore, the prosecution has miserably failed to
put the appellants inside the flat. Therefore, the starting link in the chain
7
of circumstances is snapped and the entire prosecution case has collapsed
like house made from a deck of cards.
It is further submitted by the Ld. Counsel appearing for the
appellants-accused that as regards the evidence of Sajib Sarkar, P.W.-3,
having seen the appellants roaming in the lane on the evening of
26.09.2007 is concerned, is false, significantly no time has been mentioned
as to when they were seen and this fact was stated for the first time when
this witness was deposing in Court on April 10, 2008 and was never stated
before the Police in the statement recorded under Section 161 Cr.P.C.
during investigation. This serious omission amounts to a contradiction
and no reliance can be placed on the same.
It is further submitted by the Ld. Counsel appearing for the
appellants-accused that the fourth link in the chain of circumstances
relied upon by the Ld. Judge was the recovery of the wearing apparels
allegedly stained with blood from the house of both the appellants
pursuant to a statement made by them and upon examination the blood
stains found on the wearing apparels of the appellant-accused Subhankar
were found to be of Group-A which was of the same Blood Group found on
the bed sheet upon which deceased Maya Sarkar was allegedly been found
8
lying. The wearing apparels of appellant Debapriya were found stained with
blood of blood group AB which was of the same blood group found on the
wearing apparels of Smt. Maya Sarkar and Anusha Sarkar. It has also
been submitted by the Ld. Counsel that although the appellants resided in
a densely populated area, prior to the search the Police had not called
upon any respectable inhabitants of the locality to witness the search and
seizure and the two persons who had signed on the seizure list were
residents of areas at a distance of 2 or more kilometers from the place of
search and no explanation had been given by the Investigating Officer as to
why the search and seizure were in violation of Section - 100 (4) of the
Code of Criminal Procedure. Again the alleged blood stains were not
encircled on the wearing apparels nor were the said wearing apparels
labeled, packed and sealed at the time of alleged seizure.
As regards the report from the Forensic Science Laboratory it is
disclosed that the blood stained wearing apparels of deceased Maya and
Anusha had Blood Group - AB. Strangely the bed sheet on which the
injured Maya was lying and which allegedly was soaked with blood was
found to be of Blood Group - A. No explanation was forthcoming from the
prosecution to explain this anomaly. The Blood Group of both the
appellants were never ascertained nor was the Blood Group of the two
9
deceased ascertained even though the autopsy surgeon had preserved
samples of the blood of the deceased in Glass vials which were properly
sealed and marked and sent to the Forensic Science Laboratory. The same
was not tested on the specious pleas that the same may have become
contaminated. Though there was no such apprehension of contamination
with regard to the blood stained apparels seized in this case. Even though
the same were removed from the deceased prior to post mortem
examination then carried to the Police Station where they lay in the
Malkhana and were only labeled and sealed immediately prior to being
dispatched to the Forensic Science Laboratory. In this connection, it may
not be out of place to record that even though the deceased were
discovered at 7 a.m. on 27th September, 2007 and a number of seizures
were made from the bedroom occupied by the deceased, the bed-sheets
soaked in blood on which the deceased Maya was lying was not seized until
October 2, 2007 and no explanation had been tendered by the prosecution
for such delayed seizure.
It is submitted that in so far as recovery of the knife on the basis of
the alleged statement of the appellant and as allegedly shown by them is
concerned was made by the appellants-accused on 29.09.2007. But as it
was dark, no recovery could be made on that day. It is only on
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02.10.2007, the said recovery came to be made. But prior to the arrival of
the Police and the accused at the spot a large gathering had assembled
which included various personnel of the Print and Electronic Media.
Further although the appellant is supposed to have pointed out the place
where the knife was thrown, more than 20 minutes elapsed when the knife
could not be found and it is only after the appellant allegedly shadow acted
that on further search after 10 minutes the knife was recovered. According
to the Ld. Counsel for the appellants-accused, surprisingly the knife was
neither covered in slime or mud but when the same was pulled out it was
shinning and the knife allegedly recovered as per the statement and
showing of the appellant was never shown to the autopsy surgeon and it is
only when Dr. Debnath Sarkar, P.W. 34, was examined in Court, it was
shown to him and he initially deposed that the knife with which the
wounds on the deceased were caused was a two edged weapon but
subsequently thereto when the knife having one sharp edge and one blunt
edge was shown to him he turned volte face and had said that the knife
could have caused the injuries on the deceased which did not mismatch
with the injuries.
It is submitted that in this case the finger print expert examined by
the prosecution is a commerce graduate with little or no scientific
11
knowledge of finger prints. Thus, his evidence as an expert cannot be
relied upon. Further, he has not used FAACT Machine for preparing finger
prints although it is available in the Department of Finger Printing, nor any
specimens of finger prints of the deceased or of P.W. 2 and P.W. 6 was
obtained in course of investigation. It is further contended that the finger
prints of the appellants-accused did not match any of the fingerprints
recovered from the scene of occurrence. It is only thereafter that palm
print of the co-accused Debapriya Pal came to be taken which according to
the prosecution matched with a print recovered from a cello tape roll
alleged to be found at the scene of occurrence. According to the learned
counsel for the appellants-accused the cello tape roll produced by the
prosecution did not bear any finger/palm prints nor any mark denoting
that the said cello tape roll was seized from the scene of occurrence. It is
submitted that the search and seizure have been done in the casual
manner with the sole object of implicating the appellants-accused. The
alleged recovery of a laptop from the residence of Debapriya Pal is also
suspected. Therefore, the prosecution's case on this count is unreliable. It
is submitted that though the investigating agency has seized various
materials from the place of occurrence and cell phones from the two
appellants-accused and one from the house of deceased Maya Sarkar, they
are not placed on record as evidence to show what purpose the cell phones
12
were seized and what was the investigation done in the manner. It is
submitted that the police had tailored the investigation to come to lead to a
particular conclusion but inadvertently failed to rule out the possibility of
the crimes having been perpetrated by some one other than the accused
and hence, the conviction and sentence is liable to be set aside on this
alone. It is submitted that the prosecution has led evidence of witnesses,
viz., Asit Kr. Sarkar (P.W. 16), Angshuman Mondal (P.W. 18), Mrinal Kanti
Das (P.W. 20), Parimal Ghosh (P.W. 21), Nani Gopal Saha (P.W. 22),
Sudipta Roy (P.W. 25). The Statement under Section 161 IPC had not been
recorded.
It is, therefore, submitted that the prosecution has miserably failed to
prove its case on any of the offences charged against the appellants-
accused and the conviction and sentence inflicted upon the appellants is
liable to be set aside and they deserves to be acquitted.
On the other hand, the Ld. Public Prosecutor submitted that the
prosecution has proved the case against the appellants-accused by
establishing all the circumstances relied upon by the Trial Court.
According to the Ld. P.P., the prosecution has established the killings of
two helpless ladies, which was horrifying and barbarous act and the
13
motive to commit the murder was to avenge love lost by a jilted lover. It is
submitted that the brutal manner in which the two ladies came to be
murdered was to satisfy ancient grudge for snapping off time and it is wild
justice which is revenge and the vicious nature of the injuries suggest that
it was a revengeful murder.
It is further submitted that the appellants-accused have murdered
Smt. Maya Sarkar after 05.30 p.m. when she returned from her school
after attending a workshop and Anusha has left home for tuition. It is
after departure of Anusha that they entered the house and murdered Smt.
Maya Sarkar and then waited for return of Anusha. When Anusha stepped
in, she was also butchered.
The learned Public Prosecutor also impressed upon us there was no
marks of injury on the appellants-accused because there was no question
of resistance as both the appellants-accused got full opportunity to kill
their victims one by one.
It was submitted that the prosecution has established that the
appellant-accused entered into the house of Smt. Maya Sarkar and in all
probability by the main gate as Subhankar was a friend/acquaintance of
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Anusha and though Smt. Maya Sarkar had disapproved their relationship
being the mother and teacher by profession when the appellants-accused
came to the house it was not abnormal on her part to let the accused in. It
is submitted that the prosecution has sufficiently established the motive
and the presence of the appellants-accused in the house of Maya Sarkar
on the basis of their conduct prior to, during and after the incident.
It is submitted that the appellants-accused were found proceeding
towards Air View Complex on the day of the incident, at their instances,
i.e., both the accused made statement relating to discovery of their
respective wearing apparels from their respective residences which were
found blood stained. The blood group 'A' of blood stains found on wearing
apparels of Subhankar match with blood group 'A' of the blood found on
bed-sheet seized from the room where the dead-bodies were found and the
blood group 'AB' of blood stains found on wearing apparels of Debapriya
match with blood group 'AB' of the blood found on wearing apparels of
Maya Sarkar and Anusha Sarkar. It is further submitted that the knife
which according to the evidence of Medical Officer could have caused the
injuries found on the dead-body of Maya Sarkar was recovered at the
instances of the appellants-accused. It is also submitted that the
specimen left palm print of accused Debapriya match with the chance
15
print found on a Cello Tape Roll seized from the place of occurrence. It is
submitted that in addition to this the Laptop belonging to Ananya Sarkar,
the elder daughter of Smt. Maya Sarkar and elder sister of Anusha came to
be recovered from the house of Subhankar at the instance of Debapriya,
which was kept under the cushion cover for which the appellants-accused
has not offered any explanation and this is an additional link in the chain
of circumstances goes to prove the prosecution case and, therefore, the
prayer of the appellants-accused is deserves to be dismissed.
There is no dispute over the fact that Smt. Maya Sarkar, w/o. late
Hemchandra Sarkar and her daughter Anusha Sarkar, daughter of
Hemchandra Sarkar died homicidal death. The inquest report of both the
victims came to be prepared by S.I. Gopinath Tudu (P.W. 37) who visited
the place of occurrence in the presence of Asit Kumar Sarkar (P.W. 16) and
Nani Gopal Saha (P.W. 22) and Sujit Kr. Sarkar (P.W. 1). The dead bodies
along with the relevant papers came to be sent to the Superintendent
Malda Hospital for conducting post mortem examination through H.G,
English Bazar P.S. Taimul Haque (P.W. 19).
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Dr. Debnath Sarkar (P.W. 34) conducted postmortem over the dead
bodies of Maya Sarkar and Anusha Sarkar and on examining dead body of
Maya Sarkar he opined that:
"Rigor mortis was present, mouth was close, cyanosed, face
congested, marked with petechie, both hands were tied at wrist by
ligature and placed over chest, eyes were closed with sub
conjunctival hemorrhage, whitish froth over mouth."
He found the following external injuries:
"1) Fresh abrasion over left side of face and chin,
2) Multiple crecentric, fresh abrasion over mid chest in front and
left breast.
3) Fresh sharp liner abrasion over front of left arm,
4) Fresh sharp cut wound, smooth margin and superficial
measuring:-
a) 2" X 1/8 inch X 1/10th inch.
b) 2.5" X 1/8th" x 1/10" towards right and 1/8th" towards left over
front neck horizontally.
5) Fresh sharp cut wound over lift side of chest in front measuring
1.5" X 1" X lung deep obliquely.
No other external injury was found.
On dissection: 1) bruise over back side scalp. 2) meninges and brain were markedly congested over petechiel hemorrhage, 3) multiple bruises over neck and congested mucus membrane of wind pipes and contains blood tinged frothy mucus, 4) bruises over upper part of chest in front, sharp cut wound over 4th, 5th and 6th ribs over left side of chestin front in full depth, 5) sharp cut 17 wound over trachea and bronchial tree with mucus membrane congestion and contains blood tinged frothy mucus, 6) sharp cut wound over left pleza (sic) and plural cavity contains fair amount of blood, 7) lungs were markedly congested and edematous with hemorrhagic patches and exedules frothy dark fluid blood. On section plural petechial hemorrhage sharp cut wound over left lung, 8) pericardial petechial hemorrhage, 9) right side of heart contains dark fluid blood and left side empty, 10) peretonial congestion, 11) congestion of stomach and contained semi- digested food, 12) all internal organs were congested, 13) uterus normal in size, hymen was ruptured with old tear, vagina can admit two fingers easily.
Probable time since death - within 36 hours of P.M. examination. In his opinion death was due to the effect of ante mortem strangulation and injuries and homicidal in nature.
All injuries were ante mortem.
Out of External injuries as mentioned in Sl. No. 7B, injury no. 1 was caused by hard object.
Injury No. 2 was caused by nails of finger.
Injury No. 3, 4 and 5 were caused by hard and sharp cutting pointed instrument.
Bruises over scalp, neck and chest were caused by and the injury no. 3 found on chest on dissection were sufficient to cause death. P.M. Blood, vaginal swab and wearing apparels were handed over to the escorting home guard Taimul Haque."
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This report of post mortem of Maya Saha Sarkar was prepared and signed by him and marked as Ext. 34. In his opinion "Fresh injury means injury caused within 24 hrs. of examination. Semi digestion of food in stomach means food has been taken within 2-3 hrs. before death. Bruises may be caused due to falling over the hard substance or as a result of pushing down on hard substance or as a result of pushing against the wall.
Petechal hemorrhages may be caused due to strangulation. Sub conjunctivital hemorrhages also may because due to strangulation. Cyonosis and frothing over mouth might be caused due to strangulation."
Dr. Debnath Sarkar (P.W. 34) also examined the dead body of Anusha Sarkar @ Guddu and on examining her dead body, he opined that :
"Rigor mortis was present, mouth was partly open, body was pale, both hands tied at wrist by ligature, placed over chest, eyes were closed."
He found the following external injuries:
"1.Fresh sharp cut wound (a) over chin and left side of face horizontally measuring 3" x ½" x ¼", (b) left breast vertically four in nos. measuring ½" x ¼" x viscera deep, 1½ x ½" x viscera deep, 2"
x 3/3" x viscera deep, (c) front of mid chest in between breast vertically measuring 2" x ¼" x viscera deep, d) front of neck 19 horizontally cutting muscles, vessels, wind pipe, food pipe measuring 4" x 1.5" X food pipe deep, (e) left side of chest laterally measuring ¾" x ¼" x 1/8".
No other external injury was found.
On dissection: 1) bruises over back side of scalp, 2) all internal, organs were pale, 3) neck injuries as stated before, 4) sharp cut wound over 4th, 5th and 6th ribs in full depth over let side of chest in front 5) sharp cut would over left pleura and collection of large amount of blood in plural cavity, 6) sharp cut would over left bronchial tree and sharp cut wound over left lung, 7) sharp cut would over pericardisec contains blood, 8) sharp cut wound over heard in full depth and stomach was empty, 9) uterus normal in size, hymen ruptured, with old tear and vagina can admit two examining fingers easily.
Probable time since death: within 36 hours of P.M. examination. In my opinion cause of death was due to the effect of ante mortem injuries, homicidal in nature.
All injuries were ante mortem in nature.
All the injuries were caused by hard, sharp cutting and pointed instrument except scalp bruise caused by hard and blunt object. All the chest injuries as mentioned in B except injury over left side of chest laterally and neck injuries are sufficient to cause death individually.
P.M. Blood, vaginal swab and wearing apparels were handed over to the escorting home guard Taimul Haque."
20This report of P.M. of Anusha Sarkar was prepared and signed by him and is marked as Ext. 35.
Dr. Debnath Sarkar (P.W. 34) was shown knife (mat. Ext. VI) to which he stated that all the knife cut injuries found on dead bodies of Maya Sarkar and Anusha Sarkar may be caused by this type of knife (mat. Ext. VI). Dr. Debnath Sarkar has been examined on various aspects and was also confronted with the fact that during investigation I.O. never showed the knife produced in Court to him, which he admitted. In his cross examination he stated that out of the injuries found on Anusha Sarkar one injury was found on the front of mid chest in between breast vertically measuring 2" x ¼" x viscera deep. This injury penetrates the sternum. He has further stated that there was no injury on the person of Maya Sarkar having breadth of two inches or more. He further stated that there was no injury on the person of Anusha having breadth two inches or more. There were only three injuries on the person of Maya Sarkar having length two inches or more than two inches and there were four injuries on the person of Anusha Sarkar having length two inches or more than two inches. He has stated that sharp cutting injuries found on the person of Maya and Anusha having sharp cutting edges on both the sides. In 21 respect of knife (Mat. Ext. VI) which was shown to him is stated as having one side blunt and one side sharp.
Therefore, the fact that deceased Maya Sarkar and Anusha Sarkar died homicidal death and some of the injuries found and noticed on their person can be caused by the type of knife (mat. ext. VI) stands established.
It is the prosecution's case that the motive for committing the crime by the appellants-accused was by way of revenge as Smt. Maya Sarkar prevented her daughter Anusha Sarkar from continuing her relations with appellant-accused Subhankar Sarkar. In order to establish the motive prosecution has examined Ananya Sarkar (P.W. 23), sister of Anusha Sarkar. At the relevant time this witness was residing in a mess in Kolkata. She was prosecuting her studies in Jadavpur University and was a student of final year M.Sc. On 27.9.07 she was informed on telephone that her mother was seriously ill and she was asked to go back to Malda. She reached Malda by Janasatabdi Express at about 12/12.30 at night and was received at the Malda Railway Station by relatives who informed her that her mother and sister had been murdered in previous night in their house in Air View Complex. When her relatives asked if she suspected any body, she told them that no body besides Subhankar, i.e., 22 appellant-accused 1 could have committed the said murder. In her evidence before the Court, she has stated that she presumed to be so because Subhankar, appellant-accused, was friend of her sister and having realized that he would not be able to make relation with Anusha and in order to take revenge he had committed the murder of her mother and sister. According to her, although her sister developed friendship with Subhankar somewhere in the month of August 2005, when her sister was admitted in college she came to know this affair in May 2006. Her sister Anusha was a student of Mathematics Honours in Malda College. Having come to learn about the relationship, her mother Smt. Maya Sarkar raised objection and on inquiry Smt. Maya Sarkar learnt that the educational qualification and family background of Subhankar were not good and, therefore, she did not wish that her daughter should continue such relation with Subhankar. Ananya Sarkar (P.W. 23) and her mother deceased Maya Sarkar convinced Anusha about the bad consequences of continuing such relationship and Anusha also realized form the behaviour of Subhankar that she should discontinue such relation. It is for this reason that Subhankar started disturbing her sister and used to follow her whenever she went out to attend college or to attend private tuition and even to other places. She has deposed to the effect that one occasion when she along with her sister going by train Subhankar came to Malda Railway 23 Station and stood in front of their compartment and when her sister was returning from Kolkata by train Subhankar having noticed her enter into a ladies compartment, followed her but on seeing her accompanying Anusha, got down from the compartment. She has further deposed that Subhankar used to disturb her sister on her way to college and tuition and threatened her if she would avoid him at the instruction of her mother both her mother and sister would have to face the consequence and that their mother would not be able to discontinue this relation. She has also deposed to the effect that he used to come to their house when their sister was alone in the house and threatened her by pushing calling bell. Not only this, Subhankar even threatened and disturbed her sister over her mobile phone and they were required to change the sim card of the mobile phone of her sister. Subhankar used to disturb her and even threaten her mother when she received phone call over the land line that she would have to face the consequence for what she has done.
The stories of Subhankar stalking Anusha and threatening her of dire consequences were related to her mother by neighbours and their driver Nabarun Paul (P.W.6) and Ananya Sarkar (P.W. 23) learnt about it from her mother as and when she used to talk on telephone. This fact not only stands established by the evidences of Ananya Sarkar (P.W. 23) but 24 also by Sajib Sarkar (P.W. 3) who was their neighbour who has on various occasion seen Subhankar gossiping with Anusha and waiting for in front of ITI More prior to the date of incident. In his evidence Sajib Sarkar (P.W. 3) has stated that 15 days prior to the date of incident while he was returning from Netaji Market, he noticed in the fly over Subhankar was telling something in a furious mood to Anusha by restraining her rickshaw. When he came close to them he heard that Subhankar was saying "Mayer kathai erie cholle beshi din bacha jabe na."
This witness also claims to have seen appellant-accused Subhankar with Debapriya going into the lane going towards Air View Complex in the evening on the day of the incident. But, it appears to be an omission in the prosecution's case for the very reason that this fact was not narrated under Section 161 Cr. P.C. when his statement came to be recorded by the police. This being a very important incident, the witness would have definitely told the police about this fact. Another witness on this count is Firoj Karim Choudhury (P.W. 4) who was working in the clinic of Dr. M. Rahaman, his brother-in-law. He knew Hem Chandra Sarkar, father of Anusha Sarkar. According to him, six or seven days prior to the incident appellant-accused Subhankar had come to the chamber of Dr. Rahaman with his sister. When he asked Subhankar as to how his love affair with Anusha was going on, he replied that "sab-e golmal", "Anusha-ke chhere 25 katha bolbo na." He said that he came to know about the incident of murder of Anusha and her mother in the morning of 27.9.07 and thought that perhaps Subhankar had done the mischief. He has deposed to the effect that Subhankar had relations with one Debabrata Pal. Subhankar used to move with Debabrata. He is also a witness when the finger print expert visited the place of occurrence and examined the articles. Therefore, insofar as motive is concerned prosecution has established that appellant-accused Subhankar was having intimate friendship with deceased Anusha Sarkar and she severed her relations with Subhankar due to his mother's intervention because of which appellant-accused Subhankar was very much annoyed and threatened Anusha Sarkar as well as her mother Maya Sarkar of dire consequences.
Nabarun Paul (P.W. 6), the driver of Smt. Maya Sarkar also deposed on behalf of the prosecution that the appellant-accused Subhankar used to call Anusha as Guddu-di. In his evidence before the Court he has stated that 5-6 months after starting of work as driver of the car of Maya Sarkar, he came to know that Subhankar used to come to the place of tuition of Guddu-di and used to gossip. Though this witness has been declared hostile by the prosecution as he did not support the case of the prosecution, on the point of threats given to Guddu-di i.e., Anusha. 26 Therefore, one thing is clear from the evidence of these witnesses that Subhankar had used to meet Anusha and they were good friend till their relationship became sour due to intervention of Smt. Maya Sarkar who objected and told Anusha to discontinue with such relation with appellant- accused Subhankar as he did not have good family background and education.
On 27.9.07 when Saraswati Sarkar (P.W. 2), the maid, came to the house of Maya Sarkar, she found Maya Sarkar and Anusha Sarkar were murdered. Maya Sarkar was lying on bed and the dead body of Guddu was lying on the floor. She has deposed to the effect that when she went to the house in that morning, I pushed the calling bell time and again but nobody opened the door and, therefore, she pushed the door which got opened and went to kitchen but did not find any utensils to be cleaned. She thought that they had not taken dinner on the previous night. Thereafter, she heard the calling bell and went out and found that driver Bachhan (P.W. 6) was ringing the bell. He demanded the key of the car and called Maya Sarkar and Guddu, but nobody responded. She went towards the bed room and found 'kakima', i.e., Maya Sarkar was lying on the floor. She tried to push her body and asked her to hand over the key, but she did not reply. Thus, she realized that Maya Sarkar and her 27 daughter were murdered. She noticed blood on the floor and on the bed also. She informed the incident to the driver and also to the tenant residing on the ground floor and the neighbours. She also deposed to the effect that Mun, i.e., Ananya Sarkar (P.W. 23), a student of college in Kolkata came to the house for the last time about 12 days prior to the incident and she left the house about 3 days prior to the incident. She was cross-examined at length with emphasis on access to the house and she has deposed to the effect that without seeing as to who was ringing the calling bell the door was not opened. There is another collapsible gate at the entrance of the 1st floor from landing the stair case runs straight up to the 1st floor. On the earlier day, she had left the house at 5.00 p.m. when Maya Sarkar and Guddu were present in the house. She has stated in her cross-examination that police of English Bazar Police Station detained her and Bachhan for two days. Therefore, the first person to notice the dead bodies was Saraswati Sarkar (P.W. 2), followed by Nabarun Paul (P.W. 6) and informed all concerned.
Sujit Kr. Sarkar (P.W. 1) is the next important witness examined by the prosecution. He was the brother of Hem Chandra Sarkar, the late husband and father of the deceased. On getting information from a resident of the locality, he reached the house on his motor bike and saw 28 that many persons had assembled there. He found the dead body of Maya Sarkar was lying on the bed and the dead body of Anusha was lying on the floor and they sustained bleeding injuries. Therefore, he went to the English Bazar P.S. and reported the incident. He has identified the complaint (Ext. 1) as written and signed by him. According to him, police inspected the dead body of Maya Sarkar and Anusha Sarkar and prepared the document (Ext. 2/4 and 3/4). He has put his signature on the inquest report of Maya Sarkar as well as Anusha Sarkar (Ext. 2 and 3 respectively) Police Inspector Prasad Pradhan (P.W. 33) was the in-charge English Bazar P.S. who received the complaint lodged by Sujit Kr. Sarkar (P.W. 1) and he registered EB. P.S. Case No. 365/07 dt. 27.9.07 u/s 302 of I.P.C against unknown by filling up the formal FIR (Ext. 33) and handed over the investigation of the case to S.I. Gopinath Tudu (P.W. 37). Except for visiting, he has not carried out any investigation in the matter.
The investigation was conducted by S.I. Gopinath Tudu (P.W. 37) who has deposed to the effect that on being entrusted with the investigation of the case, he visited the place of occurrence with I.C. EB.P.S and other police personnel. On reaching the spot, he placed formal requisition in writing to the photographer. He examined Saraswati Sarkar 29 (P.W. 2), Nabarun Paul (P.W. 6) and Raja Kundu (P.W. 17) and prepared the inquest report of deceased Maya Sarkar and Anusha Sarkar. In presence of witnesses, he prepared dead body challan of the deceased and sent the dead bodies for post mortem examination. He then prepared sketch map along with the index (Ext. 38) and seized one white handkerchief, one green coloured torn cello tape, one white 'orna' and one 'khat' from the place of occurrence under a seizure list (Ext. 12/2) in the presence of witnesses. Two signatures were obtained on the label (Ext. 20). He also seized other articles like one blood stained towel, pump balish and one check gamchha, paposh, one vial containing specimen blood of Anusha Sarkar and one Reliance LG mobile set from the place of occurrence under a seizure list (Ext. 13/2). He then made arrangement for police guard to preserve the finger print at the place of occurrence so as to preserve the finger prints and sent message to the S.P. Malda, for making arrangement for finger print expert. In course of investigation, he seized the wearing apparels, vaginal swab and specimen blood of deceased Maya Sarkar and Anusha Sarkar on being produced by H.G. No. 865 Taimul Haque as the P.S. after post mortem in presence of the witnesses and labelled the same. According to him, in the evening of 28.9.07 finger print expert Samir Kr. Chandra Barman reported to him at the E.B. P.S. Thereafter, he along with Samir Barman and one witness went to the place 30 of occurrence. According to him, the finger print expert was able to develop finger prints found at the place of occurrence and marked the same and put his signature thereon and also took the signatures of the witnesses. According to S. I. Gopinath Tudu (P.W. 37), the finger print expert was able to develop finger print on telephone receiver, by the side of the locker on the steel almirah, on two cello tape rolls and submitted his report to the in-charge, E.B. police station. We propose to deal with this part of the evidence of the photographer and finger print expert at appropriate place in our judgment as it is also one of the important circumstances on which the prosecution has relied in support of the case.
In the evidence of S.I. Gopinath Tudu (P.W. 37) that on 28.9.07 he went to Gangabag to examine Ananya Sarkar (P.W. 23), the elder daughter of deceased Maya Sarkar and recorded her statement. It is one the basis of her statement that he along with police force went to Sarbamangala palli in the house of Subhankar Sarkar but could not find him. His family members could not say his whereabouts. Therefore, they were asked to send Subhankar whenever he was available to the P.S. for examination. Then, they went to Maheshmati Sakopara and went to the house of Debapriya Pal but he was also not found and his family members were also asked to send Debapriya to the P.S. for examination in connection with the 31 case. On the next day, he again went in search of Subhankar Sarkar and Debapriya Pal but they were not found at their respective house. They went to Rathbari area to keep watch regarding movement of appellants- accused Debapriya Pal and Subhankar Sarkar and having learnt they were at their house, he went to Sarbamangala palli and arrested Subhankar from his house named 'Green Valley Traders' and then went to Maheshmati Sako para and arrested Debapriya Pal from his house.
It is the case of the prosecution that on 29.9.07 on being interrogated Subhankar Sarkar and Debapriya Pal, disclosed that they had thrown away the knife near Air View Complex after committing murder. The police force along with appellants-accused visited the place but as it was dark, no recovery could be made on that day. On the next day, i.e., on 30.9.07 Subhankar and Debapriya were produced before the Court and their remand was sought in police custody. On 30.9.07, further statements of Ananya Sarkar came to be recorded at the police station where she stated that her laptop, which had been in the house, was missing. Thereafter, the accused persons were interrogated and the appellant-accused Debapriya Pal gave information that the laptop of Ananya Sarkar was kept in his house. Pursuant to the information given by the appellant-accused Debapriya Pal, the police party along with Debapriya Pal went to his house 32 in Maheshmati Sako para and the appellant-accused Debapriya took out the laptop from his bed room and produced the same before the police. The same came to be seized in the presence of Sudipta Dey (P.W. 7) and Ganesh Prasad (P.W. 8) who support the prosecution and have identified the appellant-accused Debapriya Pal who at that time was in the custody of the police. According to them Debapriya Pal on reaching the house, went upstairs and called his mother and his mother opened the door. Then, he entered in a room on the 1st floor accompanied by witness and police and took out an article covered with blue and red coloured cushion cover from beneath the cot. After opening the chain of the said cover appellant-accused Debapriya took out a laptop from the said cover. The witnesses have identified the appellants-accused Debapriya Pal in Court as the same person, and also the laptop and the cushion cover (Mat. Ext. I). They have also identified their signature on the seizure list as Ext. 4 and 4/1 respectively. The stand taken by the appellants-accused that the laptop did not belong to Ananya Sarkar (P.W. 23) and that there was no mention that cushion cover was missing from the house of the deceased, the prosecution in order to meet the case of the defence, examined Rajesh Saboo (P.W. 24) and Sudipta Roy (P.W. 25), an employee of Saboo Computer Pvt. Ltd from where Ananya Sarkar had purchased the computer laptop. On going through their evidence it is quite clear that the 33 said laptop was purchased by Ananya Sarkar (P.W. 23). Ananya Sarkar (P.W. 23) has stated that on 30.9.07 she went to her house at Air View Complex and she was asked by the police party as to whether anything was missing and that she found that the laptop was not on the table where it had been. So, she searched for the laptop in the entire house excepting the bed room which was sealed by the police, but did not find it. She inquired from the police who told her they had not seen the laptop in the room where the murder took place and, therefore, reported that her laptop was missing. In the night of 30.9.07, she was called by the police and shown the laptop there and came to know from the police that the laptop is recovered from the house of Debapriya Pal. She identified the laptop as well as the cushion cover of cushion of their sofa in the police station. In her evidence she not only identified the laptop but also the accessories of laptop (Mat. Ext. II). She has stated that she verified the password of the laptop and confirmed that it was her laptop and the police had seized cash memo of the laptop and accessories from her. The witness in her testimony had identified the cushion cover in which the laptop was kept and had stated that the photograph (Mat. Ext. XLI/2) shown to her showed that there was only one cushion without cover on their sofa and another cushion is covered with similar cushion cover as produced in Court. She specifically stated that she had purchased the laptop from Chandi Market 34 in Kolkata which stands corroborated by one Rajesh Saboo (P.W. 24) and Sudipta Roy (P.W. 25) who sold the laptop to her.
It was contended on behalf of the defence that Ananya Sarkar (P.W.
23) claimed to have left the laptop on 23.9.07; and as on 26.9.07, how could she send message to Tridib on Internet? On this aspect except for suggesting that on 26.9.07 she sent message to Tridib and confronting her with the print out (Ext. E) there is no cross-examination on the point that if she had left her laptop at her house in Malda and, thereafter, it was found missing, how could she send message to Tridib on 26.9.07? Probably the defence anticipated that her explanation will damage their case, particularly when she has stated earlier that there is no internet connection to her laptop. Therefore, the prosecution has clearly established that the laptop (Mat. Ext. II) belonged to Ananya Sarkar and it was along with the cushion cover (Mat. Ext. I), was discovered at the instance of appellant-accused Debapriya Pal from his house.
The second set of discoveries was made on 02.10.2007. It has come in the evidence of S.I. Gopinath Tudu (P.W. 37) that on 02.10.2007 he interrogated appellants-accused Subhankar Sarkar and Debapriya Pal and recorded their statements. On the basis of the statement made by Subhankar Sarkar (Ext. 40), they first went to the house of Subhankar 35 Sarkar along with witnesses. On reaching his house Subhankar Sarkar entered into a room and took out one jeans pant of ash colour having blood stain, one pink coloured half sleeve genji, one Reliance LG mobile. The said articles came to be seized and a seizure list was prepared in the presence of witnesses. The seizure list is Ext. 6/2 which bears the signatures of witnesses. Pursuant to the statement made by Debapriya Pal (Ext. 41), the Police along with the appellants-accused and witnesses then went to the house of Debapriya Pal who let them inside his house and after entering into the room took out one sky coloured full pant, one blue coloured genji and one Tata Indicom Mobile and produced the same before him. The said wearing apparels were stained with blood and came to be seized in the presence of the witnesses for which a seizure list was prepared. The same is Ext. A/2 and the label is marked Ext.9.
According to the prosecution on the very same day, Police was able to seize the knife (material Ext. VI) from the drain. In order to establish this fact, the Prosecution has examined S.I. Tudu (P.W. 37). In his evidence before the Court, S.I. Tudu has stated that after the seizure of wearing apparels of Subhankar Sarkar and Debapriya Pal they returned to the Police Station and interrogated the appellants-accused on the basis of their statements. They along with officers, accused persons, went to South- 36 eastern side of Air View Complex beside Manikchak-Malda State Highway in order to discover the knife. On reaching the spot, police procured two witnesses namely Shakti Singh (P.W. 14) and Ranjit Sarkar (P.W.11). On being pointed out by the appellant-accused, the witnesses were requested to search out the knife at the place pointed out by Subhankar Sarkar, i.e. in the Khal drain by the side of Malda-Manikchak Street Highway beside of Malda I.T.I. More. Initially, the knife could not be traced out in spite of searching. It is only when the appellant-accused Subhankar Sarkar has pointed out the particular place by shadow acting as to where he had thrown the knife, the witness Shakti Singh was successful in searching out the knife. The knife came to be seized under the seizure list (10/2) which is signed by the witnesses. The statements of the appellants-accused leading to discovery of the knife are marked Ext. 42 and 43 respectively.
The contention of the Ld. Counsel for the appellants-accused that discovery of the knife (material Ext.VI) cannot be used as evidence against the appellant-accused for the reason that the knife was discovered from a open drain accessible to the public at large. Further even before the appellants-accused led the Police to the spot, people including the members of the Print and Electronic Media were present at the place from where the knife was discovered. It goes to show that the Police had prior 37 information as to where the knife was lying even before the alleged statements of the accused persons came to be recorded by them and in all probability the knife has been planted by the Police so as to falsely implicate the accused persons in the case. Dr. Debnath Sarkar has deposed to the effect that the injuries found on the dead-bodies of Maya Sarkar and Anusha Sarkar having sharp cutting edges on both the sides whereas the knife (material Ext. VI) is having one side blunt and one side sharp. It is pointed out that the knife is taken out from the drain which was not having any blood stains and, therefore, it cannot be said that the same knife was used for the commission of offence.
The fact that the knife was taken out from the drain is proved by the prosecution by examining not only S.I. Tudu (P.W. 37) but also examining two other witnesses i.e. Ranjit Sarkar (P.W. 11) and Shakti Singh (P.W. 14). Ranjit Sarkar (P.W.11) runs a Tea Stall at ITI More and was witnessed to the discovery of knife. He has deposed to the effect that he saw the accused persons who were brought in a Police Jeep. He has identified the accused-person Subhankar Sarkar who got down from the Jeep with the Police and accused Debapriya Pal was sitting inside the Police Jeep. The appellants-accused Subhankar asked them i.e. Ranjit Sarkar and Shakti Singh (P.W. 14) to search out the knife from the drain by the roadside. 38 Initially, they could not find out the said knife but then accused Subhankar showed the particular point where the knife might be available. After half an hour search, Shakti Singh found the said knife and took it out from the said drain and he identified the knife (Material Ext. VI) in the Court.
Similarly, in his evidence Shakti Singh (P.W. 14) has stated that he works as a rickshaw puller as well as sweeper and he parked his rickshaw at ITI More rickshaw stand. He was waiting at ITI More rickshaw stand when the Police Vehicle came and stopped in front of their Rickshaw Stand. The accused Subhankar got down from the vehicle with the police personnel and other accused were inside the vehicle. The boy who got down from the vehicle stood on a culvert facing towards Manikchak and pointed out the high drain where the knife had been thrown by him. Police then asked him and two others to search out the said knife from the drain. He got down into the drain but could not find the knife and informed the police. Then the said boy on being asked by Police pointed out the particular place in the drain where he had thrown the knife. Then they again started searching and after searching he could find out the said knife from the drain and handed over the same to the Police. He has also identified the knife in the Court as the same knife which was taken out by him from the drain.
39
Therefore, it can be seen that the knife (material Ext. VI) could be discovered on the information given by the accused-persons and particularly the accused Subhankar who on reaching the spot specifically pointed out the place in the drain where he had thrown the knife (material Ext. VI). As regards the contention of Ld. Counsel for the appellants- accused, that this cannot be considered as evidence of discovery under Section 27 of the Evidence Act, for the reason that the place where the knife was thrown was known to all and secondly it was discovered from open place, is sufficient to discard the evidence of discovery cannot be accepted.
It is true that immediately after arrest of the accused persons on they being interrogated they gave information that they had thrown away the knife at a place near Air View Complex and the Police acting on the information did come to the spot but as it was dark, no recovery could be made out on that day. This itself would not mean that the Police was aware exactly where the knife was thrown though knowledge of the fact can be attributed to them that the knife was thrown in the drain along side the road and probably then on 2nd October, when the Police further interrogated the appellants-accused about the knife and decided to go to 40 the spot so as to discover the knife, persons from the media and members of the Public came to know about it and that is how they were all present at the spot when the police party along with the accused persons reached there.
The appellants-accused Subhankar was brought down from the Jeep and pointed out the place where the knife was thrown and on his showing the spot on the drain, Shakti Singh was able to find the knife after making efforts in searching out the knife. The recovery of the knife from the drain and from the spot indicated by the appellant-accused Subhankar sufficiently indicates that it was within the exclusive knowledge of the accused as to where the knife was lying in the drain though the spot from the where the knife has been recovered is open and accessible to all but the knife (material ext. VI) was lying inside the drain and was not visible.
So far as the contention of the Ld. Counsel for the appellants- accused that the knife was not found having any blood stain, one can understand that the knife remained under water and, therefore, the question of any blood stain being detected does not arise so also when it was taken out the mud, if any, which was stuck to the knife would be 41 washed out. Whether the knife (material ext. VI) was actually used for committing offence or not is a different question.
Now, let us examine the evidence relating to the photographs, fingerprints obtained from the place of occurrence and the result of analysis received from the Forensic Science Laboratory, of articles like wearing apparels of the deceased and the bed-sheet seized from the place of occurrence as well as blood stains found on the wearing apparels of the appellant-accused Subhankar and Debapriya.
Mrinal Kanti Das (PW-20) is a photographer by profession. He was requisitioned to the place of occurrence to take photographs of the dead bodies and accordingly, he has taken photographs of the dead bodies of Maya Sarkar and Anusha Sarkar @ Guddu from different angles. He has also taken photographs of articles lying on the sofa and drawing room and delivered 18 photographs with negative to the Investigating Officer. He has taken 8 photographs of Maya Sarkar (Material Ext. XXXIX to XXXIX/7), 7 photographs of Anusha Sarkar @ Guddu (material Ext. XL to XL/6) and 3 photographs of Place of Occurrence (material ext. SLI to SLI/2) and also tendered 18 negatives so marked as material ext. XLII. Out of these photographs, the photograph (material ext. XLI/II was shown to Ananya Sarkar (PW-23) and she has stated that only one cushion cover of their 42 sofa has been missing and by referring to the cushion cover (material ext. XLI/II), she has identified the same as that of their sofa's cushion cover and from the photographs (material ext. XLI to XLI/2) shown to her, she has pointed out that one cushion without cover can be seen from the place of occurrence and another cushion cover with similar cushion cover produced in Court. This correlates the evidence tendered by the prosecution as regards the discovery of the Laptop and cushion cover at the instance of Debapriya from his house.
The other Photographer, Swapan Kumar Bachar (PW-30) was requisitioned on 01.10.2007 to English Bazar Police Station in connection with the case for obtaining fingerprints from the place of occurrence. In his evidence he has stated that after going to the place of occurrence I.O. pointed out four finger prints which had been developed by the expert and then on the basis of the report of expert he took photographs of those fingerprints. At first he took photograph of telephone receiver marked 'A', then took the photograph of the fingerprint on the steel almirah by the side of locker which had been marked as 'B', then took photograph of 'C' which is a cello tape roll and took photograph of 'D' (mat ext. XXII) which is also a cello tape roll. The photographs which were taken by him marked as material ext. XXII. According to him he produced the photographs of 43 fingerprints to the fingerprint expert in the same order as stated above. In respect of the cello tape roll marked 'D' which is crucial in the case, he has stated that at present he do not find any mark on the surface of the Mat Ext. XXII. This witness was assisted by another photographer of CID, Prem Nath Ghosh (PW-31). He corroborates that on seeing to the place of occurrence the I.O. identified the fingerprints, the photographs of which were to be taken and Swapan Kumar Bachar took the photograph of the fingerprints and he assisted him.
Samir Kumar Chanda Burman (PW-32), Junior Fingerprint Expert, was requisitioned to inspect the place of occurrence by the Investigating Officer on 28.09.2007. He was taken to the room where the crime has occurred. He entered into the room and the I.O. waited outside the room. After entering into the room he examined all probable places and articles inside the room, suspected to have been handled by the culprits. He developed four prints marked here as A, B, C and D in presence of the witnesses (one of them was Firoj Karim Choudhury). He has stated that the prints were marked and encircled and signed by him and by the witness. He also stated that the services of CID photographer were requisitioned by the Investigating Officer to take photographs of the developed prints and prints were carefully preserved till the arrival of the 44 photographer. He has categorically stated that the print on telephone receiver was marked as 'A', print on locker of steel almirah was marked as 'B', print one cello tape roll was marked as 'C' and print on another cello tape roll was marked as 'D'. He has also identified the initial report dated 28.09.2007 (mat ext. 29) given by him. According to this witness, as he could not verify the specimen fingerprint of accused Subhankar and Debapriya with the developed print obtained from the place of occurrence, they sent requisition again on 06.11.07 (mat ext. 30) for obtaining palm print of the accused persons. The said requisition dated 06.11.07 sent by Director, Finger Print Bureau, to the O.C., E.B.P.S. and it was prepared at the direction of Director, Finger Print Bureau. The Investigating Officer has stated that on the basis of communication No. 731 dt. 6.11.07 issued by Finger Print Bureau, he submitted prayer (sic) application before the learned CJM, Malda, for obtaining palm print of both the accused persons and his prayer was allowed pursuant to which the learned CJM, Malda, referred the mater to Judicial Magistrate, 2nd Court, Malda. The prosecution has examined Ld. Magistrate Bishnubasan Mandal (P.W. 38) that on such a request on 12.10.07 as per order of learned CJM, Malda, specimen finger prints of both hands of Subhankar Sarkar were obtained in his presence. These are collectively marked as Ext. 44/1. Similarly, on the same date specimen finger prints of both hands of Debapriya Pal were 45 also obtained in his presence which is marked as Ext. 45/1. Further, on 30.11.07, specimen palm print of both hands of Subhankar Sarkar (Ext. 46/1) and of Debapriya Pal (Ext. 47/1) came to be obtained which was sent to the Finger Print Bureau. On receipt of the specimen palm print of the accused persons, Mr. Burman (PW-32) examined the print obtained from the place of crime with the specimen palm prints and on the basis of his examination he prepared a report and submitted the same to the Director, Finger Print Bureau. Then the Director, Finger Print Bureau, gave the report which is computer generated report (mat. Ext. 31) along with a forwarding letter (mat ext. 32). As per the report (mat. Ext.31), the chance print marked here as 'D' is identical with the specimen left hand palm print of Debapriya Pal marked here as 'X'. The chance prints marked here as 'A' and 'C' are unfit for comparison due to lack in sufficient number of convincing ridge characteristic. The photograph of developed fingerprint marked 'D' was taken by photographer Swapan Bachar and he collected the negative from photographer Swapan Bachar. This photograph is marked Mat. Ext. XLVII and its negative is marked as Mat. Ext. XLVIII. He has also produced the photograph of specimen palm print of accused Debapriya Pal, which was taken by photographer Sujit Chakraborty, official photographer whose signature is appearing on the reverse of the photograph. The photograph is marked mat Ext. XLIX and the 46 corresponding negative is marked as mat. Ext. L. The photograph marked as mat. Ext. XLVII bears the signature of Sujit Chakrabarti, who prepared the enlarged photograph on the basis of photograph taken by photographer Swapan Bachar and Shri Burman identified his signature. He has also identified the original palm prints of Subhankar and Debapriya received by his office and marked as 'A' and 'B' respectively for identification. He has stated that he examined the left palm print of Debapriya Pal and on the said palm print he examined the portion marked 'X'. In his report he has submitted that all these palm prints marked 'A' for identification and 'B' for identification bear official seal. The four sheets contain the fingerprints of Subhankar Sarkar and Debapriya Pal which he examined. The original fingerprint of Debapriya Pal marked as 'C' for identification and the fingerprint of Subhankar Sarkar is marked as 'D' for identification. He has identified the telephone receiver, fingerprint on which was examined by him was marked mat. Ext. XIX. He has identified the fingerprint on telephone receiver marked 'A' and also the fingerprint marked 'C' on cello tape roll. He has also stated that the fingerprint on this type of cello tape roll (mat ext. XXII) was examined by him but the mark 'D' is not appearing on that and according to him the mark may disappear with the handling. Developed fingerprints are preserved till the distinct photograph thereof is prepared. He was also cross-examined at length on his expertise in the 47 field in order to demonstrate that he does not have the necessary qualification required for fingerprint expert.
We find that the evidence of this witness read along with the report submitted by the Director, Fingerprint Expert (Ext. 31) goes to show that his finding has been based on matching ridge characteristics in their relative positions forming the grounds of opinion have been marked by red- projection lines on the enlarged photographs of the identical prints and type of prints, trend, counts and tracing of the ridges and ridge- characteristics, as far as available, in their relative position have been taken into account in arriving at the opinion as endorsed by the Director, Fingerprints Expert Bureau, CID, West Bengal.
Therefore, this evidence of the expert cannot be discarded mainly on the ground that he does not know what is bioscratching, bioassay, biometry, theory of probability, pixel etc. He has specifically stated that it is not a fact that fingerprint is to counted on the basis of pixel consisting of smallest pieces of information in images and comparison of 'X' axis and 'Y' axis.
48
In the cross-examination of the Investigating Officer he was questioned about procuring of finger prints from the place of occurrence. He has explained that in the message dated 28.9.07 sent by SP, Malda to the Director, Fingerprint Bureau, CID, West Bengal it was stated that the place of occurrence was preserved on 27.9.07 after investigation. According to him, on 27.9.07 after investigation he arranged for police posting at the house of 'Kalamban' so that he never entered without knowledge of police. This fact was again confirmed by forwarding letter dated 2.10.07 that the place of occurrence was preserved. He was further cross-examined in respect to the communication dated 6.11.07. The Director, Fingerprint Bureau requested to supply specimen palm print of accused persons. He did not send any palm print of Debapriya Pal found in the place of occurrence. In the seizure list dated 2.10.07 (Ext. 16/2), he has mentioned only finger print as marked by expert and not any palm print. He stated that he did not obtain any specimen fingerprints of the driver Nabarun Paul or maid Saraswati Sarkar. The confusion is created in respect of the cello tape which was marked 'D' as on the date when evidence was led by the prosecution before the Trial Court, the witness could not identify the other cello tape which was marked 'D' by developing the print. Though it was duly described and in the seizure list Ext. 16/2 and label Ext. 17/2 the same has been wrongly described as "marked-B", 49 but the fact remains that two pieces of cello tape roll were identified and is also recorded in the letter addressed by the Finger Print Expert Samir Kr. Chanda Burman (P.W. 32) to the Inspector in-charge, English Bazer Police Station, District Malda. On 28.9.07 he examined all probable places and articles suspected to have been handle by the culprits and developed four (4) prints and marked as 'A', 'B', 'C' and 'D' in presence of the witness Firoj Karim Choudhury. He has also mentioned in the letter that prints were marked and encircled and signed by him and by the said witness and requested that the services of the CID photographer may please be requisitioned to the S.S., CID, W.B., Bhabani Bhaban, Alipur, Kolkata to take photographs of the developed prints and that the prints must be preserved carefully till the arrival of the photographer. In the letter he has also mentioned that the I.O., Gopinath Tudu (P.W. 37) accompanied him to the place of occurrence. Therefore, in fact, the cello tape which was marked 'D' was there at the place of occurrence along with the cello tape marked 'C' when the print was developed by the Finger Print Expert then it was described, probably the print on the cello tape marked 'D' got erased during handling by the time produced in Court. This fact has been reiterated by all concerned witnesses. There is no suggestion on behalf of the appellants-accused that the prosecution planted the articles and that the prints on the articles were obtained from the accused persons after 50 they were arrested. If that was so, in the first instance when the prints were examined and compared, along with the specimen finger prints of the appellants-accused, there is no reason why the same would not have tallied with the specimen. But as the finger prints did not match with the prints on the articles, particularly, article 'D' a request was made to obtain the palm prints of the accused persons. Out of the palm prints, the palm print of left hand of Debapriya matched with that of cello tape 'D'. Therefore, failure of the Investigating Officer in not properly describing the seized articles in the seizure list Ext. 16/2 and label Ext. 17/2 wherein he failed to describe the cello tape as marked 'D', would not dislodge the prosecution's case that the cello tape marked 'D' by the Finger Print Expert when he developed the print on the place of occurrence was there, merely because it is described in the seizure list & label as 'B' due to mistake.
The next important piece of evidence is the result of examination report received from the Central Forensic Science Laboratory. The results of examination report are as under :-
"The following exhibits were examined by Benzidine & Takayama Test for the detection of Blood. The Exhibits were further examined by Gel Diffusion, Absorption Elution for detection of origin and grouping of Blood. Based on these examinations the results obtained are given below :51
1. Blood was detected on the Exhibit No. A1, A2, B1, B2, C1, C2, D1, D2, E, F1, F2, however, blood could not be detected on Exhibit No. G
2. Human Blood was detected on the Exhibit No. A1, A2, B1, B2, C1, C2, D1, D2, E, F1 & F2.
3. Blood Group 'A' was detected in Exhibits no. 'A1', 'A2' & 'E' and Blood Group 'AB' was detected in Exhibits no. 'B1', 'C1', 'C2', 'D1' & 'D2', however Blood Group could not be detected in Exhibits no. 'B2', 'F1' & 'F2'."
We are concerned with Ext. 'A' - wearing apparels of Subhankar, Ext. 'A1'- one Jeans Pant, 'A2'- one Ganjee, 'B' - wearing apparels of Debapriya Pal 'B1"- One Pant , 'B2" - one Ganjee, Ext.'C1'- Saree D1 one Pant 'D2'- one Ganjee of Anusha Sarkar. In all these exhibits human blood was detected and Blood Group 'A' was detected in exhibit 'A1', 'A2' and 'E' and Blood Group 'AB' was detected in exhibits 'B1', 'C1', 'D1' and 'D2'. This goes to show that the wearing apparels of Subhankar (Ext. 'A1' and 'A2') were found stained with blood with Blood Group 'A' and so also bed sheet (Ext. 'E') which was the bed sheet seized from the place of occurrence on which bed sheet dead-body of Maya Sarkar was found lying. So far as wearing apparels of Debapriya Sarkar is concerned, i.e., 'B1', and 'B2' and that of deceased Maya Sarkar (Ext. 'E') and that of Anusha Sarkar 'D1' and 'D2' is concerned, they all are stained with blood of Blood Group 'AB'. This goes to corroborate the prosecution's case that the appellants-accused 52 were present at the place of occurrence as their clothes were found stained with blood on the bed sheets and wearing apparels of the deceased Maya Sarkar and Anusha Sarkar which were seized from the place of occurrence and bodies of the victims for which no explanation has been offered by the appellants-accused. It is true that the blood samples of the deceased which were sent by the Medical Officer, who conducted autopsy on the dead bodies, were not analyzed as suspected of being contaminated and no blood samples were drawn from the appellants-accused Subhankar and Debapriya, but, this does not make any dent in the prosecution's case that the Blood Group of blood found on the wearing apparels of the appellants- accused tally with the Blood Group of blood stain found on the bed sheet and wearing apparels of Smt. Maya Sarkar and Anusha Sarkar for which no explanation is offered by the appellants even in their statements recorded u/s 313 Cr.P.C..
It is a well settled law that in a case dependent wholly on circumstantial evidence the Court before recording a conviction on the basis, therefore, must be firmly satisfied:
(a) that the circumstances from which the inference of guilt is to be drawn, have been fully established by unimpeachable evidence beyond a shadow of doubt;53
(b) that the circumstances are of a determinative tendency unerringly pointing towards the guilt of the accused; and
(c) that the circumstances, taken collectively, are incapable of explanation on any reasonable hypothesis save that of the guilt sought to be proved against him.
Having examined the evidence on record we have no hesitation to hold that the prosecution has been able to establish beyond reasonable doubt that the appellants-accused have committed the offence for which they are charged.
It has come on record that appellants-accused Subhankar and Debapriya being a friend had a strong motive to do away with Smt. Maya Sarkar and Anusha Sarkar @ Guddu as Subhankar who was deeply in love with Anusha Sarkar from the conduct of her mother Smt. Maya Sarkar and Anusha Sarkar was convinced that he has lost Anusha @ Guddu for ever. This stands sufficiently established from his conduct when he started stalking Anusha Sarkar @ Guddu and even conveyed his displeasure by threatening her of dire consequences. Not only this, he even threatened Maya Sarkar on telephone whenever he would call them and immediately preceding the incident of murder such threatening calls were received by 54 Smt. Maya Sarkar and Anusha Sarkar which were shared by them with Ananya Sarkar, the elder daughter, and it has come in her evidence that the family was really concerned and apprehended that their life was in danger. Ananya Sarkar has also stated in her evidence that she came to know from her sister 17 days back when she had gone to Ramkrishna Palli to attain tuition class, that Subhankar had threatened her by saying "you will face the consequence very soon." She has also stated that whenever she used to go to Malda, she found Subhankar used to stand at I.T.I More along with another boy and she came to know from her sister that he was Debapriya Pal and she has identified him in the Court.
Thus, the established circumstances in the case goes to prove that Subhankar and Debapriya on the day and time Maya Sarkar and Anusha Sarkar @ Guddu were murdered were present at the place of occurrence and can be summed up such as the discovery of the laptop belonging to Ananya Sarkar (P.W. 23) seized from the house of Debapriya Pal along with cushion cover of the sofa remain unexplained by Debapriya Pal as to under what circumstances he came into possession of the said laptop kept in the cushion cover of the sofa from the house of the victim. On the other hand, what is meant to suggest by the defence is that Ananya Sarkar did not own the laptop. The other set of discovery we have already noted is that of 55 wearing apparels of appellants-accused Subhankar Sarkar and Debapriya Pal. It was tried to be contended that the discovery of wearing apparels at their instance is doubtful. We do not think it so. In so far as the witnesses to this discovery are concerned, it does not create doubt about them for being taken as witnesses merely because they are not immediate neighbours of the accused persons. It is common knowledge that immediate neighbours may not think it proper to be witness against persons who are accused of serious offences like murder and the witnesses who are examined by the prosecution cannot be held unreliable as nothing have been brought in cross-examination that they are deposing falsely. Further, the appellants-accused have not denied the fact that the clothes do belong to them. These clothes were discovered in consequence of the information received from the accused as stated by the witnesses and the Investigating Officer, admittedly the accused persons were in police custody when they gave information and pursuant to that information, they had gone to their respective place of residence and brought out their wearing apparels which were found to be stained with blood and came to be seized, but when sent to the Forensic Science Laboratory, it was found that these wearing apparels were having blood stains of Blood Group 'A' and 'AB' respectively which were also the blood group of blood stains found on the bed sheet seized from place of occurrence and wearing apparels of 56 the deceased. The other thing which has been discovered is the knife (Mat. Ext. VI) from the drain which was stretching over alongside the road. It is only after the appellants-accused Subhankar pointed out that he had thrown the knife into the drain, the witnesses and particularly Shakti Singha (P.W. 14) was able to search out the knife (Mat. Ext. VI), though it could not be stated with certain degree of certainty that it was the same knife which was used for commission of the offence and may not lead the prosecution to conclusively prove that this was the weapon of assault. But, the use of such a weapon cannot be ruled out as can be seen from the evidence of Dr. Debnath Sarkar (P.W. 34) and the discovery of knife can be attributed to the appellant-accused Subhankar considering his conduct in pointing out the exact place where the knife was thrown in the open drain alongside the road.
The most crucial and clinching evidence led by the prosecution is that of the Finger Print Expert who has been able to develop four (4) prints from the place of occurrence and out of which one cello tape (Ext. D, Art. XXII) was found to be having palm print of the appellant-accused Debapriya Pal as the palm prints of Debapriya Pal which was subsequently obtained after seeking permission of the learned Magistrate were found to match with the prints on this article.
57
In our opinion, not only the aforesaid circumstances have been fully proved by the prosecution, but they are conclusive in nature and in the given facts and circumstances of the case, the Investigating Officer was able to collect this as the best possible evidence of the crime and we have no hesitation to hold that the chain of circumstances are complete as reasonably possible of any other person being the real culprit is excluded as all the facts taken together are conclusive to establish the guilt. The apprehension in defence of the appellants-accused that it was a case of robbery and murder, stands ruled out as Ananya Sarkar (P.W. 23) has clearly stated that no valuables were taken away from her house; only she found her laptop to be missing which was ultimately discovered at the instance of Debapriya Pal.
Now, we proceed to examine the case from the point of view of sentence imposed on the appellants-accused. The learned Trial Court while justifying the capital punishment to the appellants-accused, was of the view :
"(a) This is a case of double murder. The murderer after committing murder of mother in her own house had been waiting there to jump on second prey and could succeed.58
(b) The murder has been committed after previous planning and after committing the murder attempt was taken to divert the attention.
(c) After murder offending weapon and their own blood stained wearing apparels have been concealed in order to cause disappearance of evidence.
(d) it is a cold blooded murder.
(e) Victims did not provoke or contribute incident. Accused persons somehow getting entry into the house of victims murdered two helpless ladies one by one.
(f) Before committing murder they tied hands of victims with clothes and their mouth were gagged by putting cello tape.
(g) At least Maya Sarkar was sexually assaulted by squeezing her breast after trying her hands.
(h) Several strokes were made on both the victims to fulfill the pleasure of revenge.
(i) The photographs (Mat. Ext. - XXXIX to Mat. Ext. - XXXIX/7 and Mat Ext. - XL to Mat. Ext. - XL/6) show how brutally and heinously the helpless ladies were murdered.
(j) Even after slitting the throat of the loved one they did not become satisfied themselves without making several strokes with knife, one of which reached upto sternum.
These aggravating circumstances certainly form "Special Reasons" as mentioned in section 354(3) Cr. P.C. and must evidence aggravation of an abnormal or special degree.
59On the other hand, neither the perusal of evidence on record nor the statement u/s 313 Cr. P.C. provide for any mitigating circumstances in favour of the convicts.
It is to be mentioned here that age of convicts cannot be a mitigating factor particularly when they have murdered two helpless ladies-one of whom is a college student aged around 20 years in such a heinous way. The status of family of convict can never a mitigating factor. Moreover one of the deceased was a teacher of a school, another her daughter who was a college student. The father of the said daughter was Asstt. Inspector of Schools.
The brutality and heinous nature of crime deserves careful consideration of the court. No person of common prudence would ever indulge that a lover would slit the throat of loved one. It is absolutely a case of brutal avenge over the two helpless women by two desperate who thought that they would go set free. But evidence on record cannot be ignored.
In the instant case there is nothing to show that there is/was any repentance by the accd. Persons at any point of time during trial or any explanation for the occurrence."
We tend to differ from it and, in our opinion this is not a case which can be considered to be rarest of rare case. The learned Trial Court in its discretion found that the appellants-accused deserve to be given capital punishment having forfeited their right to life due to the nature and 60 manner in which crime is committed and also expressed that their age cannot be considered to be a mitigating circumstance. We find that nothing has been brought on record by the prosecution to show that the appellants-accused have taken to life of crime and were a threat to the society. Considering their young age and that they have no bad antecedent the chances of their being reformed cannot be ruled out.
Life has been likened to the greatest of gifts endowed by God and has been looked upon with love, adoration and devotion by poets, thinkers, philosophers and pillars of the society for years and unless a person forfeits his right to life in a civilized society one should prefer the reformative theory of punishment and not the retributive, for death penalty does not correct them but it deters the person who are like them and, therefore, we uphold the conviction of the appellants-accused for murder but however, commute the sentence of death to one of imprisonment of life and the punishment imposed by the Trial Court on all other counts are maintained.
The appeal is partly allowed. The death reference is rejected.
(J. N. Patel, C.J.) I agree.
61(Ashim Kumar Roy, J.)