Calcutta High Court (Appellete Side)
State Of West Bengal vs Bimal Sardar @ Battery on 13 July, 2015
Author: Ashim Kumar Roy
Bench: Ashim Kumar Roy
Form No. J(1) IN THE HIGH COURT AT CALCUTTA CRIMINAL APPELLATE JURISDICTION APPELLATE SIDE Present:
The Hon'ble Justice Ashim Kumar Roy And The Hon'ble Justice Malay Marut Banerjee DEATH REFERENCE No.01 of 2015 State of West Bengal
-vs-
Bimal Sardar @ Battery With CRA No. 169 of 2015 Bimal Sardar @ Battery
-vs-
State of West Bengal
For the Appellant : Mr. Prabir Majumder
For the State : Mr. Manjit Singh, Ld. P.P.,
Mr. Rudradipta Nandy,
Mr. Pawan Kumar Gupta.
Heard on:13.5.2015, 4.6.2015, 10.6.2015,11.6.2015 and 12.6.2015 Judgment on:- 13.07.2015.
Ashim Kumar Roy, J:-
The appellant/convict Bimal Sardar @ Battery was placed on a trial before the learned Additional Sessions Judge, 3rd Court, Nadia, Krishnanagar to answer charges for offences punishable under section 376 IPC for committing rape on a minor Archana Saha and under section 302/201 IPC for intentionally causing her death and for disappearance of the evidence of murder.
The trial Judge found the appellant/convict guilty on all counts, he was charged with. While he was sentenced to death for his conviction under section 302 IPC, simultaneously he was also convicted for the offences punishable under section 376 IPC and 201 IPC and sentenced thereunder to suffer imprisonment for life and rigorous imprisonment for 7 years respectively with fine and default clause. Both the sentences imposed against him for his conviction under section 376 IPC and 201 IPC were directed to run concurrently and the fine amount, if realized, be paid to the brother of the victim/girl.
Following the sentence of death being passed against the appellant/convict, the trial court submitted the proceeding before this court for confirmation of the sentence, whereas the appellant/convict in a separate statutory appeal challenged the said judgment, which gave rise to this death reference and the appeal.
Since both the death reference and the appeal are arising out of the self-same judgment and order, the same are taken up for hearing together and disposed of by this common order.
2. In substance the prosecution case goes like this, The victim Archana Saha, aged about 14 years and a student of class-VII of Gede Vidyasagar Madhyamik Sikhakendra, bereft of her father, residing with her deaf and dumb mother and brother at their house at Gede, Uttarpara. On the fateful day at about 10.30 am, she went to school but did not return and after vigorous search, on the next day at about 11 a.m. her dead body was found in a turmeric field of one Dulal Biswas. Subsequently, it was known from the witness Tapas Majumdar (PW/7), a local shop keeper, that on the previous day, while it was raining heavily, at around 3 p.m., the PW/7 found the victim going with the appellant/convict under his umbrella. After the discovery of the dead body and it was known to all that the victim was found last seen alive in the company of the appellant/convict, he confessed his guilt and disclosed to the villagers that he along with 3 others raped and killed her. During inquest, blood was found on her private parts and a Medical Board, which held post mortem, opined that the victim suffered a homicidal death due to ante mortem manual throttling.
3. On perusal of the records, we find there was no eye- witness to the actual occurrence, in which the victim was killed and the case of the prosecution entirely rests on circumstantial evidence. It needs no debate that in a case like this which is based on circumstantial evidence, each piece of circumstance, relied upon by the prosecution against the accused must be proved beyond all reasonable doubts and the circumstances so proved must form a chain leading to an inevitable conclusion that it is the accused and no one else is the author of the crime. Furthermore, such conclusion must be compatible only with the guilt of the accused and there cannot be any scope to fit the same with his innocence.
4. The prosecution relied on following circumstances against the appellant/convict,
(a) On the fateful day in the morning, the victim went to school and was there till the school was closed at 3.15 p.m.
(b) The PW/3, one of the Teachers of the school, where the victim was studying, on her way back from the school after the school was closed met the victim on the road. At that time it was raining heavily and they both together walked for a few minutes under one umbrella, thereafter while the victim took shelter under the shed of the grocery shop of one Bablu Biswas, the witness left.
(c) The PW/7 at around 16.00 hrs. on June 10, 2013 found the victim standing under the shed of grocery shop of Bablu Biswas, when it was still raining. The witness saw her while he was standing in front of his shop on the other side of the road.
(d) In the meanwhile, the appellant/convict was found by the PW/7 coming from the side of the station and they had a talk.
(e) After about 5 minutes, the PW/7 saw both the appellant/convict and the victim to go together under one umbrella towards her house.
(f) The PW/7 when asked the victim where she was going with the appellant/convict, she did not reply.
(g) Thereafter, none found her alive.
(h) On the next day around 11 a.m. her dead body in her school uniform was found in the turmeric garden of Dulal Biswas.
(i) About an hour before the discovery of the dead body of the victim, the appellant/convict told the PW/12, his own uncle that he was not feeling well and when he was asked to go to the Doctor by the said witness, he refused and had little food for lunch.
(j) After lunch the appellant/convict went towards the place, where the dead body was found and returned and informed the co-villagers and the PW/12 that something was lying inside the garden in a ditch. When the PW/12 and others went there and found it was the dead body of a female person.
(k) After the discovery of the dead body, the appellant/convict told the PW/12 that he would flee away but the PW/12 stopped him.
(l) The PW/11, one of the Autopsy Surgeon opined that the time of death of the victim may be sometime in the afternoon or evening of June, 10, 2013.
(m) When the PW/7 disclosed to the villagers that he saw the victim with the appellant/convict on the previous day in the afternoon at around 4 p.m., the appellant/convict confessed to the villagers that he and others raped and killed her.
(n) The place, where the dead body was found, was close to the field where the appellant/convict used to work.
(o) During inquest, the police found blood on the private parts of the victim.
(p) Post mortem was held by a Medical Board and they opined that she suffered a homicidal death due to ante-mortem manual throttling.
(q) After the arrest of the petitioner, pursuant to the information given and being led by him, her school bag containing books, geometry box, pencil, water bottle and slippers etc. were recovered from a bamboo bush near to the place, wherefrom her dead body was recovered.
(r) Subsequently, one black umbrella was recovered by the police from his house pursuant to the information given by the appellant/convict and on being led by him.
5. Neither during the trial nor before this court from the side of the defence (appellant/convict), it is disputed that the victim Archana Saha suffered a homicidal death due to ante mortem manual strangulation. Such circumstance has been proved by the prosecution on the evidence of the Autopsy Surgeon (PW/11). We have carefully gone through his evidence and considering the foundation of such opinion, have no cogent reason to take a different stand.
6. The learned counsel for the appellant/convict, however, with reference to the evidence of the Autopsy Surgeon (PW/11) submitted, in his cross-examination the said witness admitted that the time of death of the victim could not be ascertained due to the decomposition of the dead body and then contended when time of death of the victim could not be fixed, the appellant/convict cannot be linked with her murder even after accepting the evidence of Tapas Majumdar (PW/7) that victim was found in the company of the appellant/convict at around 4 p.m. in the afternoon on the day from which she was missing. The learned Public Prosecutor refuted such contention and contended that the probable time of death of the victim is quite clear from the answer given by the Autopsy Surgeon (PW/11) during his cross-examination.
In a case where one of the incriminating circumstances used against an accused by the prosecution to prove his guilt, is the circumstance of last seen together, the probable time of death plays a crucial role. That is because, if the time gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead, is too small and very close to each other, then in that case such small time gap would be a strong incriminating circumstance against the accused, excluding the possibilities of any other person's involvement in the commission of the crime and more particularly when the accused has not come out with any explanation. In this context reliance may be placed on the decision of the Hon'ble Apex Court in the case of Ramreddy Rajesh Khanna Reddy vs. State of A.P. reported in 2006(3) SCC (Cri) 512.
It is true the Autopsy Surgeon (PW/11) when was cross-examined by the defence disclosed that the time of death of the victim could not be ascertained. However, at the same time when this witness was further cross-examined by the defence, stated to the effect, in hot season rigor mortis starts within 2 hours of death and lasts for 24 hours and during winter season it starts after 2 hours and lasts for 36 hours. He further stated, depending upon the climatic condition decomposition starts with the disappearance of rigor mortis. It was his categorical evidence that if the victim was killed in the evening or in the afternoon of June 10, 2013, then the rigor mortis would stay till the afternoon or the evening of June 11, 2013 and then decomposition will start and continue and within 72 hours maggots would be collected on the dead body and which may be in the afternoon or evening of June 10, 2013 in hot season and according to his further evidence the dead body was found decomposed in full extent. Therefore, the case of the prosecution that the victim was killed on June 10, 2013 some time after 4 p.m. she was found in the company of the appellant/convict by the Tapas Majumdar (PW/7) cannot be said to have been belied by the evidence of the Autopsy Surgeon. We are therefore, unable to accept the contention of the learned counsel of the appellant/convict that prosecution has not been able to fix the probable time of death of the victim.
7. Now the question arises for our decision as to whether the prosecution has been able to prove the circumstance that the victim was last seen alive in the company of the appellant/convict or not.
(a) In this regard we propose to start with the evidence of Gayetri Nath (PW/3), a teacher of the school, where the victim was studying. According to the PW/3 on the fateful day the victim girl attended her school and left at around 3.15 p.m., after the school hours was over. The said witness was cross-examined at length by the defence and during such cross-examination, she further disclosed on that day in the afternoon at about 3.15 p.m., after the school was closed within 2/3 minutes the witness left the school and after about 4/5 minutes, she met the victim, when it was raining and both of them walked together for about 2/3 minutes under one umbrella. Thereafter, while the victim took shelter under the shed of the grocery shop of Bablu Biswas and remained there, the witness left. We do not find any infirmities in her above evidence, which was elicited during her cross-examination and the same is unhesitatingly accepted.
(b) The PW/7, Tapas Majumdar, a local shop keeper, is a key witness of the prosecution and has been heavily relied upon by the prosecution to prove the circumstance against the appellant/convict that the victim was last found alive in his company. According to the said witness on the fateful day at about 4 p.m. in the afternoon, when he was standing in front of his shop, he found the victim standing under the shed of the grocery shop of one Bablu Biswas.
At this stage, it is pertinent to note, according to the PW/3, Gayatri Nath, after the victim walked with her for few steps and for about 2/3 minutes, the victim took shelter under the shed of the grocery shop of Bablu Biswas and she left. That was around 3.30 p.m. The PW/7, Tapas Majumdar further deposed after some time, he found the appellant/convict coming from the side of the station road and he had a talk with him and then after about 5 minutes both the appellant/convict and the victim were found going together, under one umbrella towards her house and when was asked by him, why she was returning home with the appellant/convict, she gave no reply.
The PW/7, Tapas Majumdar was cross-examined at length by the defence but that yielded no favourable outcome to the defence. On the contrary the PW/7 Tapas Majumdar reiterated about such facts what he deposed during his examination-in-chief and added at that time there was heavy rainfall and there was no other person on the road and to reach the turmeric garden of Dulal Biswas from his shop it takes about 3 minutes on foot.
The learned counsel for the appellant/convict insisted upon us not to pay any reliance on the deposition of Tapas Majumdar (PW/7). He vehemently contended that if it is at all true that the victim and the appellant/convict were found together by Tapas Majumdar PW/7, at around 4 p.m. in the afternoon, when she did not return home throughout the night, it would have been very natural for him to inform the inmates of her house about such facts, who were residing just opposite to his house and others. He further contended it must be that the PW/7 who was residing close to the house of the victim, already got information about her missing on the same night and therefore, his non-disclosure of the facts that he saw the victim and the appellant/convict together on the fateful day at about 4 p.m. until the discovery of her dead body on the next morning renders his evidence completely unworthy of credence.
In reply the learned Public Prosecutor submitted that in all cases the delayed discloser of any particular fact by any prosecution witnesses on which the prosecution case hinges is not at all fatal unless it is shown that in spite of having opportunity to divulge such facts, the witness remained silent. He further submitted during the cross-examination of the PW/7 the defence has not been able to bring out from him any materials to justify its contention.
We are not inclined to accept the contention of the learned advocate of the appellant/convict for the simple reason, during protracted cross-examination of the said witness, defence never confronted him on this score and no material was brought on record that PW/7 knew about the missing of the victim girl much before 11 a.m. on the next day. On the other hand, during the cross-examination of this witness, it was elicited that he was staying 100/150 meters away from the house of the victim and not on the opposite of their house. The PW/7 in his cross-examination asserted that he saw the victim on or about 3.30 to 4 p.m. standing alone under the shed of the grocery shop of one Bablu Biswas and thereafter the appellant/convict arrived there and before 11 a.m. on the next day, none took any information from him about her. He further asserted when he came to learn from one Chandan Biswas that the victim was not traceable, since yesterday, he proceeded towards the house of the PW/1 Samir Majumdar, a cousin of the victim and on his way met him and in the meantime, they came to know that a dead body was lying in the garden of Dulal Biswas. Having such information, both of them went there and found it was the dead body of the victim. He further deposed only thereafter, he told Samir Majumdar (PW/1) about the aforesaid fact and when the appellant/convict was found working in the said garden. Furthermore, we find that prosecution had examined a number of independent witnesses and according to them after the dead body of the victim was discovered, the PW/7 reported them that he saw the victim in the company of the appellant/convict on the previous day at about 4 p.m. in the afternoon. Neither from their examination-in-chief nor from their cross-examination, it was remotely transpired, before such disclosure by the PW/7, they had the occasion to meet him and knowing fully well that the victim girl was not traceable still those witnesses were never enlightened about such facts by the PW/7.
In any event, the delay per se, in disclosing an important fact by a prosecution witness is not at all fatal, unless such delay is explained. In this case, we find the PW/7 although was cross-examined at length but not specifically on the issue. The witness however claimed until next day it was not known to him that the victim was missing. Nothing was brought to our notice that prior to the disclosure on the next day it was known to the PW/7 that the victim was missing and not traceable. We therefore find no reason to discard the evidence of Tapas Majumdar (PW/7) for non- disclosure of the fact that he saw on the previous afternoon at about 4 p.m. the victim in the company of the appellant/convict earlier. Furthermore, from the evidence on record we find the place where the dead body of the victim was found was quite close to the place, where she was found last seen alive in the company of the appellant/convict and there was a very small time gap between the point of time when accused and the victim was last seen together and when the victim was found dead. We are of the opinion the prosecution has been very much able to prove on the evidence of PW/7 Tapas Majumdar that the victim was found last seen alive in the company of the appellant/convict at about 4 p.m. on June 10, 2013.
In this regard, it be noted, when the appellant/convict was examined under section 313 CrPC a question was put to him with reference to such evidence of PW/7, but no specific answer was received from him, except he claimed that same to be false.
Having regard to the facts, the prosecution has been able to prove that the victim Archana Saha was last found alive in the company of the appellant/convict and thereafter she was found killed, the theory of last seen together at once comes into play and the requirement of provisions of Section 106 of the Evidence Act is attracted and burden shifts on the appellant/convict to explain as to how and under what circumstances she was killed. The appellant/convict having failed to give any explanation as regards to the same, except claiming such evidence is false, his failure turns to be a very strong incriminating circumstance against him and such evidence pointing to the guilt of the appellant/convict in the commission of the offence become more strengthened with the aid of established facts, as already noted that the time gap between the point of time when the deceased was last found alive in the company of the appellant/convict and her probable time of death is quite small.
There are plethora of decisions on this score. In our opinion it would be sufficient if the decision of the Hon'ble Apex Court in the case of State vs. Suresh reported in (2000) 1 SCC 471; Md. Azad vs. State of West Bengal reported in 2009 (3) SCC (Cri) 1982 and Kulvinder Singh vs. State reported in (2011) 2 SCC (Cri) 608, be taken into consideration.
8. Against the petitioner another incriminating circumstance relied upon by the prosecution is his extra judicial confession. To prove the said circumstance prosecution examined Samir Majumdar (PW/1), Dulal Biswas (PW/6), Tapas Majumdar (PW/7) and Netai Sardar (PW/12).
If the evidence about extra judicial confession comes from the mouth of the witness who appears to be un-biased not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive for attributing an untruthful statement to the accused; the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it, then after subjecting the evidence of the witness to a rigorous test, on the touchstone of credibility, if it passes the test, the extra judicial confession can be accepted and can be the basis of a conviction. In this regard the decision of the apex court in the case of State of U.P. vs. M.K. Antony reported in 1985 SCC (Cri) 105; Kishore Chand vs State of Himachal Pradesh reported in 1991 SCC (Cri) 172, can be well referred.
In the case of Thimma and Thimma Raju reported in 1970 SCC (Cri) 320, a three Judges bench of the Apex Court observed ............................an unambiguous confession, if admissible in evidence, and free from suspicion suggesting its falsity, is a valuable piece of evidence which possesses a high probative force because it emanates directly from the person committing the offence. But in the process of proof of an alleged confession the court has to be satisfied that, it is voluntary, it does not appear to be the result of inducement, threat or promise as contemplated by Section 24, Indian Evidence Act and the surrounding circumstances do not indicate that it is inspired by some improper or collateral consideration suggesting that it may not be true. For this purpose, the court must scrutinise all the relevant factors, such as, the person to whom the confession is made, the time and place of making it, the circumstances in which it is made and finally the actual words used.
9. Turning to the evidence of the witnesses Samir Majumdar (PW/1), Dulal Biswas (PW/6), Tapas Majumdar (PW/7) and Netai Sardar (PW/12), we find according to the case of the prosecution after the discovery of the dead body of the victim in the turmeric field of Dulal Biswas and the appellant/convict being found working in the said garden, since the victim was last seen alive in his company on the previous day around 4 p.m. by the PW/7 before her disappearance, he was asked where he took the victim and what happened to her thereafter. Although the appellant/convict initially disputed such claim of the PW/7, but when the witness asserted such facts, he admitted his guilt and confessed that the victim was taken to the turmeric field of Dulal Biswas and there she was raped by him and two others and killed. All the four witnesses in one voice corroborated the case of the prosecution on the point of extra judicial confession by the appellant/convict admitting his guilt. Neither any one of the witnesses could have been contradicted in their cross-examination by the defence on the question of extra judicial confession by the appellant/convict nor any cogent reason has been suggested to them for falsely implicating him. The witnesses were merely suggested that what they were telling on the factum of extra judicial confession was not true and such suggestion was denied by them.
10. The learned counsel for the appellant/convict, with reference to the evidence of Netai Sardar (PW/12) vehemently contended that this extra judicial confession cannot at all be relied upon, because same was not made voluntarily and was extracted from the appellant/convict by the villagers after assaulting him. In this regard he drew our attention to the evidence of Netai Sardar (PW/12). We find it is true that the said witness in his examination in chief, stated that Tapas Majumdar (PW/7) came to the garden and asked the appellant/convict as to where the deceased was taken by him on the previous afternoon, under his umbrella and then villagers assaulted him and he confessed his guilt. Although, it was not pointed out to us by the learned counsel of the appellant/convict we find in his cross-examination by the defence the witness admitted after being assaulted the appellant/convict confessed his guilt. The learned Public Prosecutor resisted such contention and submitted that the PW/12 Netai Sardar was the own uncle of the appellant/convict, therefore, his evidence to be scrutinized in the light of the evidence of other independent witnesses, who were the co-villagers of both the victim and the appellant/convict. Then added if such test is applied, there will be no valid reason to act on the evidence of PW/12 Netai Sardar on that score rejecting the evidence of other witnesses, who have no inclination towards any of the parties.
The evidence of Samir Majumdar (PW/1), Dulal Biswas (PW/6) and Tapas Majumdar (PW/7) as regards to the question of extra judicial confession by the appellant/convict made before them was never challenged on the ground that he was compelled to make such submission on being physically assaulted. On the contrary, those witnesses were only suggested by the defence during their cross-examination that their claim about such extra judicial confession by the appellant/convict is false. In his examination under section 313 CrPC, when a specific question was put to the appellant/convict with reference to the evidence of the witnesses on the point of extra judicial confession, he merely claimed such evidence to be false and never alleged that he was compelled to make such statement on being physically assaulted. In this regard the evidence of PW/7 be referred once again. According to him, the villagers became angry and assaulted the appellant/convict after he confessed his guilt. The defence, however, neither able to contradict the PW/7 nor even disputed his such claim by suggesting that his such claim was not true. Furthermore, according to the evidence of PW/12, the own uncle of the appellant/convict that about an hour before discovery of the dead body of the victim, the appellant/convict told him that he was not feeling well and even on being asked by the witness, he refused to go to the doctor. Subsequently, when they were having their lunch, the appellant/convict consumed very little and then he went towards the western side of the said garden and informed them that something is lying inside a ditch. When all of them went there and found that was a dead body of a female. At that time, the appellant/convict told the PW/12 that he would flee away but the witness stopped him and the villagers were called and they came. Such behaviour of the appellant/convict must be considered to be quite natural of a person who actually committed a heinous crime of murder.
We have hardly any reason to doubt the veracity of the prosecution witnesses on the question of extra judicial confession by the appellant/convict in which he admitted his guilt. The confession appears to us to be free from any taint which would throw suspicion on its character and it has a ring of truth in it. We do not find any reason for holding that the prosecution witness has any motive to concoct the story of confession. This extra judicial confession deserves to be acted upon being true and voluntary.
11. One other circumstance the prosecution relied against the appellant/convict was the discovery of the school bag of the victim girl containing her reading materials - one exercise book, geometry box, pen etc., water bottle and a pair of slipper from a bamboo bush near to the field, where her dead body was found and a black umbrella from the house of the appellant/convict pursuant to the information given and led by him. The relevant portion of the statement of the appellant/convict was exhibited during the trial and was marked as Ext.-12. Pursuant to such information given by the appellant/convict while the personal belongings of the victim were seized under seizure list Ext.4/d, the umbrella was seized vide the seizure list Ext.4/e. The seizure was effected in presence of Tapas Majumdar (PW/7) and Sukdeb Majumdar (PW/8). The Investigating Officer (PW/13) of the case deposed although the statement of the appellant/convict was recorded on June 16, 2013, in which he gave information, which led to the discovery of the articles seized vide Ext.4/d and Ext.4/e, but by mistake he noted down in the statement that same was recorded on July 16, 2013. We, however, do not incline to put any importance to such minor mistake. We find, in both the Ext.4/d and Ext.4/e, the date of seizure was very much noted as on the mid-night of June 16, 2013 and June 17, 2013.
The defence during the cross-examination of the seizure witness as also the Investigating Officer of the case could not able to discard those witnesses on the point of seizure and discovery of those articles in terms of the provisions of section 27 of the Evidence Act. During trial the prosecution proved that articles seized under Ext.4/e were belongings of the victim girl.
So far as the seizure of the black umbrella from the house of the appellant/convict is concerned, the evidence of Dulal Biswas (PW/6) be well referred. According to the said witness on the fateful day at around 16.00 hours after the rain stopped, he was going to the market when he found a black umbrella lying on the road by the side of his house but when he returned home around 17.30 hours, he did not find the umbrella there. On the next day when he asked the appellant/convict about the said umbrella he told him that same belonged to him and he had taken it to his house.
It be noted the counsel of the appellant/convict made no submissions challenging such discovery and seizure.
12. We, therefore, find the prosecution has been able to prove beyond all reasonable doubt the following circumstances against the appellant/convict, pointing his guilt towards the commission of the offence,
(a) The victim was last seen alive in the company of the appellant/convict.
(b) According to the medical evidence she suffered a homicidal death and was killed by manual strangulation.
(c) The interval between the probable time of her death as opined by the Autopsy Surgeon that too on being cross-examined by the defence and the time when she was last seen alive in the company of the appellant/convict was very small.
(d) The conduct of the appellant/convict, both pre and post discovery stage of the dead body was usual for a person who has actually committed a crime.
(e) The extra judicial confession of the accused admitting his guilt.
(f) The discovery of the dead body from a place which is close to the field where the appellant/convict used to work.
(g) Discovery of the belonging of the victim, viz., her school materials and her slippers from bush near to the place where the dead body of the victim was found on the basis of the information received from the appellant/convict and on being led by him.
We find each and every piece of the aforesaid incriminating circumstance against the appellant/convict has been proved beyond all reasonable doubt. The circumstances so proved when are taking together that complete the chain pointing towards the guilt of the accused.
Now, the failure of the accused/convict to offer any explanation as to how and under what circumstances the victim suffered a homicidal death which was within his special knowledge together with the fact the interval between the time when she was found last seen alive in the company of the appellant/convict and her probable time of death as opined by the Autopsy Surgeon being very small that the same certainly be considered as an additional link to strengthen the prosecution case against him and to prove his guilt and leads to an inevitable conclusion that it is no one else other than the appellant/convict is the perpetrator of the crime. We are therefore of the opinion the trial court was fully justified in convicting the appellant/convict for committing the offence punishable under section 302 IPC and for causing disappearance of evidence punishable under section 201 IPC. The said order of conviction deserves no interference and sustained.
13. So far as the conviction of the appellant/convict under section 376 IPC, we find this is a case where the post mortem was held by a Medical Board comprising of 3 Doctors. While Dr. Ajit Biswas was examined by the prosecution as PW/11, another Dr. Sudhansu Sekhar Jana was examined by the court as Court Witness no.2. From the evidence of the PW/11, we find admittedly they did not mention in the post mortem report anything about the sexual assault or rape on the victim and such report does not contain any opinion of the Medical Board as regards to the question of rape. The PW/11 in his evidence disclosed the external genitalia (vulva) including labia majora and minora were decomposed and partly sloughed out and reddish coloured decomposition fluid was coming out from introitus with offensive smell. Similarly, the Court Witness no. 2, at the very outset of his chief, also admitted that in the post mortem report they did not mention their opinion on the question of rape or sexual intercourse. According to him injuries to vagina indicates whether rape has been committed before death, but in the post mortem report there is no mention as to whether any injury was found on the vagina of the victim. It is true during the inquest the Investigating Officer allegedly found blood coming out from the vagina of the victim but as deposed by the CW/2 during post mortem they did not find any blood in the private parts of the victim. Thus, on the face of the evidence of the two Autopsy Surgeons, PW/11 and the CW/2, we find that the prosecution has failed to bring out any material to show that the victim was raped before her death. The learned Public Prosecutor has not disputed such position and conceded to the contention of the learned counsel of the appellant/convict that if the order of conviction of the appellant/convict on all counts is sustained still it was not a rarest of rare case and therefore, the extreme penalty is not called for. Accordingly, the conviction of the appellant/convict under section 376 IPC is quashed.
In the result while the order of conviction of the appellant/convict under section 302/201 IPC is upheld, the same in respect of the offence punishable under section 376 IPC is set aside.
In the backdrop of our conclusion that although the appellant/convict is guilty for committing offences punishable under section 302/201 IPC and prosecution having failed to prove the charge for the offence punishable under section 376 (2) (i) IPC, he has been acquitted of the said charge, by us, now we are to answer whether the extreme sentence of death penalty can still be maintained.
To begin with, it be noted the contention of the learned advocate of the appellant/convict that even if the conviction of his client was upheld on all counts, that is, under section 302 IPC, 376 (2) (i) IPC and 201 IPC, still this case does not fall within the category of rarest of rare case and therefore the extreme penalty of death sentence is not warranted, has been conceded by the learned Public Prosecutor. The learned Public Prosecutor added that if the sentence of death is commuted to imprisonment for life from the side of the State, there is nothing to say.
Be that as it may if we glance through the observation of the trial court, which insisted it to impose death penalty against the appellant/convict, we find the essential attributes of such decision was, the appellant/convict raped a minor victim and then killed her. After we acquit the appellant/convict of a charge for committing rape, such finding of the trial court no more survives. Now, on the face of our finding as above coupled with the submissions of the learned Public Prosecutor on the point of sentence the question of sustaining the extreme penalty of death sentence does not at all arise. Therefore, the sentence of death awarded against the appellant/convict by the trial court is set aside and for his conviction under section 302 IPC, we sentence him to imprisonment for life.
14. To sum up, the order of conviction of the appellant/convict under section 302/201 IPC is upheld and his conviction under section 376 (2) (i) IPC is set aside. The death reference is rejected and appeal is partly allowed in the manner as aforesaid.
Office is directed to send down the LCR together with the copy of the judgment to the court below at once.
Urgent xerox certified copy of this order be given to parties, if applied for, as early as possible.
(Ashim Kumar Roy, J.) I agree.
(Malay Marut Banerjee, J.)