Calcutta High Court (Appellete Side)
State Of West Bengal vs Sukol Tudu Alias Chhattu on 27 September, 2018
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Joymalya Bagchi
And
The Hon'ble Justice Ravi Krishan Kapur
Death Reference No.9 of 2016
STATE OF WEST BENGAL
. . .APPELLANT
VERSUS
SUKOL TUDU ALIAS CHHATTU
. . .RESPONDENT
With
C.R.A. No.644 of 2016
SUKOL TUDU ALIAS CHHATTU
. . .APPELLANT
VERSUS
STATE OF WEST BENGAL
. . .RESPONDENT
For the Appellant/(s) : Mr. Jayanta Narayan Chatterjee, Adv.
Mr. Debashish Banerjee, Adv.
Mr. Alapan Basu, Adv.
Mr. D. Biswas, Adv.
Mr. T. Dey, Adv.
Mrs. M. Pandit, Adv.
Mrs. P. Ghosh Chowdhury, Adv.
Mr. N. Ahmed, Adv.
Mr. S. Naskar, Adv.
For the State/Respondent : Mr. Saswata Gopal Mukherjee, Ld. P.P.
Mr. A.K. Maity, Ld. A.P.P.
Mr. S. Bardhan, Adv.
Ms. Kaberi Sengupta, Adv.
Heard on : 26.6.2018, 4.7.2018, 9.7.2018, 19.7.2018 & 2.8.2018.
Judgment on : 27.9.2018
Joymalya Bagchi, J.:
The appeal and the death reference are taken up for hearing analogously and are being disposed of by this common judgment and order.
The appeal is directed against judgment and order dated 5.9.2016 and 6.9.2016 passed by Special Judge, 2nd Court, Suri, Birbhum, in Special Trial No.6(4)/16 arising out of Special Case No.76 of 2015, convicting the appellant under section 302 of the Indian Penal Code (hereinafter referred to as 'I.P.C.') and under section 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as 'POCSO Act') and sentencing him to death for the offence punishable under section 302 of I.P.C. and to suffer rigorous imprisonment for life and to pay a fine of Rs.50,000/-, in default to suffer further rigorous imprisonment for five years for the offence punishable under section 6 of the POCSO Act with a further direction to pay compensation to the tune of Rs.10,00,000/- to the mother of the deceased.
Prosecution case, as alleged, against the appellant is to the effect that on 11.12.2015 at around 05:00 p.m., P.W.1, mother of the victim, saw the appellant picking up the victim aged about five years, who was playing in the courtyard of the house, in his arms and leave the house. P.W.1 did not raise any protest as the appellant was the uncle of the victim. Later in the evening when the victim did not return, P.W.1 started searching for her. At 08:00 p.m. in the night the appellant returned home. P.W.1 along with her mother (P.W.4) and others enquired about the whereabouts of the victim from the appellant. Initially, he did not state anything. Thereafter, the appellant admitted that he had raped the victim and left her unconscious beside the drain of a rice mill. Hearing this, all of them rushed to the mill and found the victim lying naked in an unconscious state near the drain. She was taken to Sian Hospital and, thereafter, shifted to Burdwan Medical College and Hospital where the victim died on 13.12.2015 at 03.25 a.m. P.W.1 lodged written complaint with the police station resulting in registration of Bolpur P.S. Case No.459/15 dated 13.12.2015, under section 304 I.P.C. and under section 6 of POCSO Act against the appellant.
Post-mortem was conducted over the body of the victim and in conclusion of investigation charge-sheet was filed against the appellant. Charges were framed under section 302 of I.P.C. and under section 6 of the POCSO Act against the appellant. He pleaded not guilty and in the course of trial, prosecution examined seven witnesses and exhibited a number of documents. In conclusion of trial, the trial Judge by judgment and order dated 05.09.2016 and 06.09.2016 convicted the appellant and sentenced him to death, as aforesaid.
Hence, the present death reference and the appeal.
Mr. Chatterjee, learned advocate appearing on behalf of the appellant argued that the circumstances relied upon by the prosecution have not been proved beyond doubt. They do not unerringly point to the guilt of the appellant. P.W.1, mother of the victim used to go out for work and it is improbable that she had seen the appellant take away the victim on the fateful day. Extra-judicial confession of the appellant relied on by the prosecution is inadmissible as prosecution witnesses admitted that the appellant had been assaulted prior to making the statement. Conduct of the prosecution witnesses in not lodging First Information Report (in short 'F.I.R.') and handing over the appellant on the very day to the police also improbabilises the so-called extra-judicial confession. There is no evidence regarding the whereabouts of the appellant after he had made the extra-judicial confession till his arrest. No forensic report with regard to the wearing apparels of the appellant has been produced in the instant case. Belated recovery of wearing apparels of the victim pursuant to the leading statement of the appellant is most artificial and does not inspire confidence. No independent witness has supported such fact. Chain of circumstances is, therefore, not complete and the appellant is liable to be acquitted of the charges levelled against him. He relied upon various authorities in support of his contentions.
On the other hand, learned Public Prosecutor for the State submitted that P.W.1 has proved that the appellant had left with the minor on the fateful day, that is, on 11.12.2015 at 05:00 p.m. Thereafter, the victim was untraceable. When the appellant returned home at night he made an extra-judicial confession to his relations and neighbours and soon thereafter, the victim was recovered in an unconscious state by the side of a drain near the mill. Witnesses noticed blood-stains on his wearing apparels. Family members of the victim were busy with regard to her treatment which explains the delay in lodging F.I.R. Post-mortem doctor (P.W.6) opined that death of the victim was homicidal in nature associated with signs of forceful penetration of vagina. Wearing apparel of the victim was recovered pursuant to the leading statement of the appellant. Defects in investigation, e.g., failure to send wearing apparels of the appellant for FSL examination are minor in nature and do not affect the credibility of the prosecution case which has been proved through the aforesaid circumstances. Therefore, the appeal is liable to be dismissed and the death reference may be confirmed. He also relied on authorities in support of his submissions.
P.W.1 is the de facto complainant and the mother of the victim. She deposed that in 2015 the victim was five years of age. On the date of the incident at 05:00 p.m., her brother-in-law, Sukol Tudu, took the victim in his lap and went outside. Thereafter, the victim did not return home. They searched for the victim but could not find her. At night when the appellant returned, she noticed blood-stains in his wearing apparels. When she asked him about the whereabouts of her daughter, he denied everything. Thereafter, she raised hue and cry. Villagers assembled at the spot and they beat Sukol Tudu. He confessed that he had raped the victim and left her behind in the drain. Thereafter, they went out and found the victim lying unconscious by the side of the drain. Her husband took the victim to Sian Hospital and, thereafter, she was shifted to Burdwan Medical College and Hospital. On the next day her husband informed her that the victim had died. Thereafter, she lodged written complaint. Mohadeb Murmu scribed the written complaint and she put her signature thereon (Ext. 1). She used to live with her husband and two daughters in a separate room and the accused person along with his parents used to live in another room within a common courtyard. Accused had confessed his guilt in front of her husband, mother, her elder sister, elder sister's husband and other villagers. In cross-examination, she stated that she is an illiterate lady. 6-7 villagers went with her to the police station. The incident occurred at a place not far away from her house. The mill had closed down for some time. There are houses in the area. Bolpur Police Station is two hours from her house. She could not find the wearing apparels of the victim in Court. In the written complaint she stated the age of the accused was 19 years.
P.W.2 is the father of the victim. He stated that the accused was his brother. He is a trolley puller by profession and used to go out for work at 07:00 a.m. and returned home at 05:00 p.m. After returning home on the date of the incident, he could not find his daughter. His wife told him that his daughter had gone out with the appellant but had not come back. When the appellant returned home, he asked him about his daughter. Hearing hue and cry, villagers enquired from the appellant and assaulted him. Thereupon, he confessed with regard to the whereabouts of his daughter. They along with the appellant went out and the victim was recovered by the side of a drain near Santosh Mill. He took the victim to Sian Hospital and, thereafter, she was shifted to Burdwan Medical College and Hospital. After three days the victim died. Police took photographs of the deceased. They seized the wearing apparel of the accused under a seizure list. He signed on the seizure list. He also signed on the seizure list relating to the seizure of wearing apparel of his daughter. He made a statement before the Magistrate. He stated that after the incident his wife started behaving abnormally and she is presently residing at her parental home with his second daughter aged about three and half months. In cross-examination, he stated that the appellant used to go out for work in the morning around 08:00 a.m. His wife would also go out for work. When both of them went out for work the child was kept at his in-law's house. The place of occurrence is a thickly populated area. There is a rice mill. Employees of the rice mill used to go by the side of the drain where the victim was recovered. Work in the rice mill goes on day and night. Lights are switched on during the night. Only one house is situated at the place wherefrom the victim was recovered.
P.W.4 is the grandmother of the victim. She deposed that eight months ago the incident occurred. PW1 went to search for her daughter and came to her house. She also went out to search the victim. Subsequently, the appellant returned home. She found blood-stains on his wearing apparel. When she asked him regarding the whereabouts of the victim, he stated that he had raped the victim and had left her lying unconscious by the side of the drain. She along with the local people went to the spot and as per statement of the appellant the victim was found. Victim was taken to Sian Hospital and was referred to Burdwan Medical College and Hospital where she succumbed to her injuries. In cross-examination, she stated that her grand-daughter would play at different places and everyone would love her. In their village, people went out for work in the morning and returned in the evening.
P.W.5, Bisu Baski, is the brother of P.W.1 and the maternal uncle of the victim. He has corroborated the evidence of his mother, P.W.4. In cross-examination, he stated that he never made any statement to anyone and stated the facts for the first time in Court.
P.W.7, Mahadev Murmu, is the scribe of the F.I.R. He proved the written complaint (Ext.1/1).
P.W.6, Dr. Partha Sarathi Hembram, conducted the post-mortem over the dead body of the victim on 13.12.2015. He proved the post-mortem report (Ext.11). He opined that the death of the victim was homicidal in nature and was associated with forceful penetration of vagina.
P.W.8, S.I. Ratan Chandra Sen, is the investigating officer in the instant case. He deposed that the case was entrusted to him by Inspector-in-Charge Arabinda Chakraborty. He went to the place of occurrence and drew up a rough sketch map with index (Ext.13 and 13/1). He examined witnesses. On 13.12.2015 he arrested the accused Sukol Tudu. During police custody on showing of the appellant, sweater of the victim was recovered and seized under a seizure list (Ext.5/2). He identified the seized article along with the labels in Court. He collected the post-mortem report of the victim. He submitted a charge-sheet. In cross-examination, he stated that the seized apparel is ordinarily sold in the open market. The witnesses cited by him in the charge-sheet are near relations of the de facto complainant. He arrested the appellant from his house. He proved the statement of the appellant recorded by him (Ext.8).
From the evidence on record, it appears that there is no direct evidence connecting the appellant to the alleged crime. In order to prove its case, the prosecution has relied on the following circumstances:-
(a) Appellant had taken away the victim aged about five years from her residence on 11.12.2015 at 05:00 p.m.;
(b) Victim was not found thereafter;
(c) Appellant returned home alone in the night;
(d) His wearing apparels were found to be stained with blood;
(e) He made extra-judicial confession in front of his relations and other villagers admitting that he had raped the victim and left her unconscious by the side of a drain;
(f) Appellant accompanied the villagers to the spot where the victim was recovered;
(g) Victim expired on 13.12.2015 and post-mortem report showed that she suffered homicidal death associated with forceful penetration of vagina;
(h) Thereafter, F.I.R. was registered and the appellant was arrested;
(i) Pursuant to his disclosure statement, wearing apparel of the victim, that is, sweater of the victim was recovered from a bush on 15.12.2015;
It has been argued that P.W.1 used to go out for work in the field and, therefore, it was improbable that she would have seen the appellant taking away the victim on the fateful day from the house. Even the appellant used to go out for work and his presence at the place of occurrence is also doubtful.
Analysing the evidence of prosecution witnesses with regard to the 'last seen theory', I find that the prosecution case essentially rests on the version of the mother of the victim, namely, P.W.1. She unequivocally deposed that the appellant being the uncle of the victim had taken the latter away from home on the fateful day around 05:00 p.m. Her evidence is criticised on the ground that P.W.2, her husband, stated that she used to go out to work in the field. I note that no suggestion had been put to P.W.1 that she was not present in the house on the fateful day when her daughter had been taken away by the appellant. It is possible that on some days she may have gone out to work in the field, however, nothing has been placed on record to improbabilise her presence in the house at 05:00 p.m. on the fateful day when the appellant took away the victim. Furthermore, even if it is believed P.W.1 had gone out to work in the field, it is common knowledge by the evening villagers working in the field would return home and, hence, her presence at the place of occurrence around 5.00 p.m. in the evening cannot be said to be improbable or unlikely. On the other hand, her evidence is corroborated by her husband (P.W.2), her mother (P.W.4) and brother (P.W.5) who stated that she informed them immediately after the incident that the appellant had taken away the victim from the house. As the victim did not return, thereafter, P.W.1 and others started searching for the victim but could not trace her out.
Hence, I am of the opinion that the prosecution has been able to prove that the victim, a girl aged about 5 years, was last seen with the appellant when she had been carried away from her home in the lap of the appellant. In the night the appellant came home alone. It is claimed when the appellant returned home, blood-stains were noticed on his wearing apparel. He was questioned regarding the whereabouts of the victim. Initially, he did not give any reply, however, when he was pressurised and assaulted, he admitted that he had raped the victim and had left her unconscious by the side of a drain near the mill. Prosecution witnesses along with the appellant went to the spot where the victim was recovered lying naked and unconscious. Victim was taken to Sian Hospital and, thereafter, to Burdwan Medical College and Hospital where she breathed her last on 13.12.2015. Post-mortem revealed that she suffered homicidal death associated with forceful penetration of her vagina. It has been argued that the wearing apparels of the appellant were not sent for FSL examination. It is also argued that the appellant had been subjected to assault and the alleged extra-judicial confession cannot be said to be voluntary. Conduct of the prosecution witnesses in not reporting the incident and handing over the appellant to police immediately after the alleged extra-judicial confession also renders the said circumstance highly suspicious. Recovery of wearing apparel, that is, sweater of the victim on 15.12.2015 on the leading statement of the appellant has not been proved. None of the witnesses including P.W.3 has supported such recovery. It is most unlikely that the sweater would be recovered on 15.12.2015, that is, two days after the recovery of the victim from the spot.
I have given anxious consideration to the aforesaid issues raised by learned counsel for the appellant. Admittedly, wearing apparel of the appellant was not sent for FSL examination. In the absence of scientific evidence with regard to presence of blood- stains on the wearing apparel of the appellant, I am loathe to rely on the oral observation of prosecution witnesses, most of whom are illiterate, to come to a firm conclusion in that regard. Even the extra-judicial confession, in my humble opinion, is fraught with serious infirmities. P.W.s 1 and 2, parents of the victim, admitted that the appellant was pressurised by villagers and even assaulted prior to making the confession. It is trite law that a confession to be admissible must be voluntary as well as truthful. In the face of evidence on record that the appellant had been assaulted and coerced prior to making of the alleged extra-judicial confession, I consider it unsafe to rely on this piece of evidence to come to a finding of guilt of the appellant.
Similarly, the recovery of sweater of the victim on 15.12.2015 pursuant to the leading statement of the appellant does not appear to have proved beyond doubt. Apart from the evidence of Investigating Officer (P.W.8), there is no other evidence supporting the prosecution case that on the showing of the appellant the sweater of the victim was recovered. Even, P.W.s 1 and 2, parents of the victim, have not supported the prosecution case in this regard. Although, P.W.2 admitted his signature on the seizure list and the label on the sweater, the sweater has not been identified by the parents of the victim. Hence, alleged recovery of the sweater on 15.12.2015, that is, two days after the recovery of the victim from the side of the drain is most improbable and does not inspire confidence.
Even if I am not inclined to rely on the alleged extra-judicial confession made by the appellant or the recovery of the sweater of the victim pursuant to his leading statement on 15.12.2015, I cannot turn my eyes from the conduct of the appellant, namely, leaving with the victim aged about 5 years in his lap around 05:00 p.m. on 11.12.2015 and thereafter, returning alone late in the night. These facts cast a solemn duty on the appellant to explain what happened to the victim while she was in his custody.
Although for reasons discussed above, I am unwilling to rely on the contents of the extra-judicial confession, conduct of the appellant that he made a statement to the parents of the victim and other villagers after his return and soon thereafter, all of them proceeded to the spot where the victim was recovered lying naked in an unconscious condition, cannot be ignored. Such conduct of the parties including the appellant as described above are admissible under section 8 of the Evidence Act and constitute incriminating circumstances implicating him in the crime. In Harivadan Babubhai Patel vs. State of Gujarat, (2013) 7 SCC 45, although the confession of the accused was not believed and the seizure witnesses relating to recovery of dead body had turned hostile, the Court held the special knowledge of the appellant where the dead body was buried is admissible under the doctrine of subsequent events. The ratio of the aforesaid decision applies with full force to the facts of this case.
On an analysis of the evidence, I feel the prosecution has been able to prove the following circumstances:-
(a) Appellant was seen leaving with the victim, aged about 5 years, in his lap on 11.12.2015 at 05:00 p.m. This had been proved by the mother of the victim (P.W.1).
(b) As the victim did not return, P.W.1 informed the said incident to her husband (P.W.2), and her mother and brother P.W.s 4 and 5 respectively.
(c) P.W.1 started searching for the victim. Other relations, namely, P.W.s 2, 4 and 5 also joined in the search.
(d) Late in the night, appellant returned home alone. On being questioned, the appellant initially did not disclose the whereabouts of the victim. Subsequently, he made a statement.
(e) Pursuant to such statement, the villagers along with the appellant went to the spot where the victim was discovered lying naked in an unconscious state by the side of a drain. Although the contents of the statement, which is claimed to be a product of coercion and assault, may not be admissible, the fact that the appellant returned home alone and upon being questioned by the local people initially remained mum and thereafter made a statement before the local people and pursuant thereto all of them went to the spot where the victim was found are conduct of parties including the appellant which are admissible under section 8 of the Evidence Act.
(f) Post-mortem report of the victim revealed that she suffered homicidal death associated with forceful penetration of her vagina.
(g) During trial including his examination under section 313 Cr.P.C. apart from denying the incident, the appellant has not given any cogent explanation as to the circumstances how the victim was sexually abused and murdered after she had been taken away by him, as aforesaid.
In Sharad Birdhichand Sarda Vs. State of Maharashta, 1984 SCC (Cri) 487, the Apex Court, while dealing with a prosecution based on circumstantial evidence held as follows:-
"The following conditions must be fulfilled before a case against an accused can be said to be fully established on circumstantial evidence:
(1) the circumstances from which the conclusion of guilt is to be drawn must or should be and not merely 'may be' fully established, (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
Applying the aforesaid ratio in the facts of the instant case, I am of the opinion that the prosecution has been able to prove the chain of circumstances, as discussed above beyond doubt and the said circumstances leave no doubt in one's mind that it was the appellant who committed rape and murder a 5-year-old child.
Authorities relied on behalf of the appellant as not factually apposite. In State of Gujrat Vs. Kishanbhai, (2014) 2 SCC (Cri) 457, the Apex Court disbelieved the 'last seen theory' as the fact that the appellant was last seen with the victim at 06:00 p.m. is improbabilised by other circumstances of the case. On the other hand, in the present case P.W.1 deposed that she had seen the appellant taking the victim away in his lap at 05:00 p.m. on the fateful day and around midnight he had returned home alone and made a statement. Soon thereafter, the appellant accompanied the villagers to the spot where the victim was found lying unconscious in naked condition by the side of a drain. P.W.1 withstood the brunt of cross-examination and her version is also corroborated by other witnesses. Hence, the 'last seen' theory is fully established in this case and the cited authority is distinguishable on facts.
In Kanhaiya Lal Vs. State of Rajasthan, (2014) 2 SCC (Cri) 413, it was held that mere 'last seen together' with the deceased without anything more can be the sole basis for conviction. In the said report, the appellant and the victim had gone to purchase liquor on 31.8.2003 at 9 p.m., thereafter, the accused came home while subsequently the dead body of the victim was recovered. The factual matrix of the instant case, however, portrays an entirely different picture. Unlike Kanhaiya Lal (Supra), the victim in the present case is a 5-year-old girl who had been taken away by the appellant in his lap from her house. Such a victim could not ordinarily leave the care and custody of her protector, that is, the appellant and, hence, a very heavy duty was cast on the appellant to explain the circumstances in which the victim was soon thereafter recovered lying naked in an unconscious state near a drain. The vulnerability of the victim and the close proximity between the appellant taking her away in his lap in the evening of 11.12.2015 from her house and the recovery of her dead body at night make it imperative for the appellant to explain the circumstances in which she suffered the injuries in her body and private parts resulting her death.
Similarly, in Ramreddy Rajesh Khanna Reddy Vs. State of Andhra Pradesh, (2006) 3 SCC (Cri) 512, the Apex Court recorded an order of acquittal in view of the unreliability of witnesses who had last seen the victim with the appellant. On the other hand, P.W.1, the mother of the victim, was the most natural witness and her evidence has remained unshaken in cross-examination. Hence, the aforesaid authority is also of little help to the appellant.
In Nizam and Anr. Vs. State of Rajasthan, (2016) 1 SCC (Cri) 386, the dead body was recovered after three days and it was held that the time gap between the last seen theory and the recovery of the body is so remote that the chain of circumstances had snapped. No such situation has occurred in the instant case as the victim was recovered with injuries on the very night after she had been taken away from home in the evening by the appellant in his lap.
Similarly, in State of West Bengal Vs. Palash Ghosh, (2016) 3 C.Cr.LR (Cal) 348 and Reksona Bibi @ Eksona Vs. State of West Bengal, (2017) 4 C.Cr.LR (Cal) 486 the Court had recorded an order of acquittal as all the incriminating circumstances in those cases had not been proved and did not give a full assurance of the guilt of the appellant.
In the light of the aforesaid discussion, I am inclined to uphold the conviction of the appellant under Section 302 of the Indian Penal Code and under Section 6 of the POCSO Act.
Coming to the sentence of death imposed on the appellant, I find that the extreme brutality of raping and murdering a minor tribal girl, aged about five years, weighed heavily in the mind of the trial Judge and prompted him to impose the extreme penalty of death as a deterrent to commission of similar offences in future. While arriving at such conclusion, the trial Judge recorded as follows:-
"This Court is of the view that the convict would be a menace to society including the younger sister of the victim girl child and would continue to be so and could not be reformed."
However, scanning through the entire judgment I do not find any application of mind of the trial Judge to the circumstances and attributes of the appellant, that is, the criminal while arriving at such conclusion.
In Bachan Singh Vs. State of Punjab, (1980) 2 SCC 684, the Apex Court by way of illustration set out the following aggravating and mitigating circumstances which may be considered while imposing the sentence of death:-
"202. ...Dr. Chitale has suggested these "aggravating circumstances":
"Aggravating circumstances: A court may, however, in the following cases impose the penalty of death in its discretion:
(a) if the murder has been committed after previous planning and involves extreme brutality; or
(b) if the murder involves exceptional depravity; or
(c) if the murder is of a member of any of the armed forces of the Union or of a member of any police force or of any public servant and was committed--
(i) while such member or public servant was on duty; or
(ii) in consequence of anything done or attempted to be done by such member or public servant in the lawful discharge of his duty as such member or public servant whether at the time of murder he was such member or public servant, as the case may be, or had ceased to be such member or public servant; or
(d) if the murder is of a person who had acted in the lawful discharge of his duty under Section 43 of the Code of Criminal Procedure, 1973, or who had rendered assistance to a Magistrate or a police officer demanding his aid or requiring his assistance under Section 37 and Section 129 of the said Code."
203. Stated broadly, there can be no objection to the acceptance of these indicators but as we have indicated already, we would prefer not to fetter judicial discretion by attempting to make an exhaustive enumeration one way or the other.
..........................
206. Dr. Chitale has suggested these mitigating factors:
Mitigating circumstances.--In the exercise of its discretion in the above cases, the court shall take into account the following circumstances:
(1) That the offence was committed under the influence of extreme mental or emotional disturbance. (2) The age of the accused. If the accused is young or old, he shall not be sentenced to death.
(3) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society.
(4) The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy the conditions (3) and (4) above. (5) That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence.
(6) That the accused acted under the duress or domination of another person.
(7) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct."
Analysing the ratio in Bachan Singh (supra), the Court in Machhi Singh Vs. State of Punjab, (1983) SCC (Cri) 681, held as follows:-
"38. ...(i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability.
(ii) Before opting for the death penalty the circumstances of the 'offender' also require to be taken into consideration along with the circumstances of the 'crime'.
(iii) Life imprisonment is the rule and death sentence is an exception. In other words death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.
(iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised."
Hence, it is imperative while imposing sentence of death that a judge is not swayed by his own personal predilections but upon an objective analysis of all the aggravating and mitigating factors available must come to the following conclusion:-
"39. ...(a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence?
(b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender?"
In order to come to such finding, the Trial Judge is not only required to examine the extreme depravity and the abhorrent nature of crime perpetrated on a vulnerable section of society but also to consider the circumstances and attributes of the criminal and come to a conclusion whether in the facts of the case the probability of rehabilitation and reformation of the criminal is wholly ruled out and the alternative punishment of life imprisonment is wholly inadequate.
In order to explore the possibility of reformation and rehabilitation of the appellant who was aged about 19 years at the time of occurrence, this Court had called for a report about the conduct of the appellant during his incarceration for three years in the correctional home. Report submitted by the Superintendent, Correctional Home relating to the conduct of the appellant bearing Memo No.3588/RB dated 26.7.2018 reads as follows:-
"To The Registrar (Court) Hon'ble High Court at Calcutta Criminal Appellate Side Calcutta • Sub:- Compliance Report • Ref:- Order of the Hon'ble Justice Ravi Krishan Kapur & Hon'ble Justice Joymalya Bagchi dated 19./07/2018 in connection with Death Reference no.9 of 2016 with C.R.A. 644 of 2016 in the matter of: Sukal Tudu @ Chattu S/O Nagen Tudu of Vill. Sian Molladanga, P.S.:-Bolpur, District:-Birbhum, Special Case No.76 of 2015, S.T. No.6(4)2016 u/s 302 of IPC & 6 POCSO Act.
Ld. Sir, I have the honour to submit report with regard to the conduct of the appellant before the Hon'ble Court, as follows, for favour of kind perusal of the Hon'ble Court.
• Name of the Convict Sukal Tudu @ Chattu S/O Nagen Tudu
• Date of Admission to this 07-09-2016
Correctional Home
• Conduct of the said Convict Nothing in adverse has been recorded against
him. Living peacefully, with good behaviour, in
this Correctional Home.
Submitted
Yours faithfully
Superintendent
Burdwan Central Correctional Home"
In the light of the aforesaid report and the facts and circumstances of the case, I have made an endeavour to enumerate the aggravating and mitigating factors emanating therefrom:-
Aggravating factors:-
(a) Victim was a tribal girl aged around 5 years.
(b) Appellant was related to the victim and was in a position of trust.
(c) Victim was subjected to rape and numerous assaults resulting in homicidal death associated with forceful intercourse.
Mitigating factors:-
(a) The appellant was 19 years of age.
(b) He also belonged to the tribal community.
(c) Appellant has no criminal antecedent.
(d) For the last 3 years while he is in jail, nothing adverse has been reported against the appellant and he appears to be living peacefully with good behaviour in the correctional home.
When the convict is a young offender with no criminal antecedent and the possibility of his reform and rehabilitation keeping in mind his age and the report from the correctional home appears to be bright, it would be unconstitutional to extinguish his life by imposing death sentence merely by applying the crime test.
On the other hand, balancing the aggravating and mitigating factors, as aforesaid, particularly in view of the age of the appellant who had barely crossed the age of majority and the positive report received from the correctional home during his incarceration, I am persuaded to hold that it would be prudent to err in favour of life than death and give the young offender a chance to reform through rehabilitation.
In Kalu Khan Vs. State of Rajasthan, (2015) 16 SCC 492, the Apex Court in a case involving rape and murder of a four year old child converted death sentence to one of life imprisonment on the ground that the case was based on circumstantial evidence and the convict had no criminal antecedents.
In Bishnu Prasad Sinha and Anr. Vs. State of Assam, (2007) 11 SCC 467, death sentence was commuted to life imprisonment in a case involving rape and murder of a 7/8 year old child, inter alia, on the ground that the case was based on circumstantial evidence and the convict had expressed his repentance and remorse at the time of his examination under section 313 Cr.P.C. Similarly, in the present case the appellant while incarcerating in jail for three years has not exhibited any adverse behaviour and appears to have followed the path of reformation and rehabilitation.
In another case reported in Surendra Pal Shivbalakpal Vs. State of Gujarat, (2005) 3 SCC 127, involving rape and murder of a girl, the sentence of death was commuted to life imprisonment as the convict was found to be a migrant labour living in impecunious condition and also had no criminal antecedents.
In Bantu Vs. State of M.P., (2001) 9 SCC 615, the death sentence was commuted to life imprisonment as the convict was a young offender aged about 22 years and had no criminal records although the case involved a heinous rape and murder of a six year old child.
In Amit Vs. State of Uttar Pradesh, (2012) 4 SCC 107, the Apex Court commuted death sentence to life imprisonment as the offender was a young person aged about 28 years and had no criminal antecedents.
Similarly in Rameshbhai Chandubhai Rathod(2) Vs. State of Gujarat, (2011) 2 SCC 764, death sentence of a young watchman aged about 27 years with no criminal antecedents who had committed rape and murder of a girl residing in the apartment where he was employed was commuted to life till the end of life subject to any remission/commutation at the instance of the government for good and sufficient behaviour.
As the convict was aged about 22 years and the jail authority submitted a report of good behaviour in jail (as in the present case), his death sentence was commuted to life imprisonment in Javed Ahmed Abdul Hamid Pawala Vs. State of Maharashtra, (1985) 1 SCC 275.
In Selvam Vs. State, (2014) 12 SCC 274, death sentence of the accused was converted to life imprisonment without parole for 30 years in a case involving rape and murder of a child aged about 9 years.
In view of the aforesaid authorities, I am of the view that a judicious balance between the 'criminal test' and the 'crime test' must be struck to determine whether the instant case falls in the 'rarest of rare' category justifying death sentence. Although I have no doubt in my mind about the gravity of the offence involving the rape and murder of a five-year old child which deserves stern and deterrent punishment but as the case is based on circumstantial evidence and in view of the young age of the offender and that he has no criminal antecedent with an unblemished record in the correctional home, I am inclined to hold that the possibility of reformation and rehabilitation of the young offender cannot be wholly ruled out and a sentence of life imprisonment without remission for a period of 20 years of actual imprisonment cannot be said to be inadequate in the facts of the case.
Hence, I commute the death sentence imposed on the appellant for the offence punishable under section 302 of I.P.C. and I direct that the appellant shall suffer imprisonment for life and shall not be considered for remission under section 432 Cr.P.C. prior to expiry of a period of 20 years of actual imprisonment and shall pay a fine of Rs.10,000/-, in default to suffer rigorous imprisonment for five years more for the offence punishable under section 302 of I.P.C. and shall suffer rigorous imprisonment for life and shall pay a fine of Rs.50,000/-, in default to suffer further rigorous imprisonment for five years for the offence punishable under section 6 of the POCSO Act and with a further direction to pay compensation to the tune of Rs.10,00,000/- to the mother of the deceased. Both the sentences shall run concurrently.
With the aforesaid modification as to sentence, Death Reference No.9 of 2016 and Criminal Appeal No.644 of 2016 are disposed of.
The period of detention suffered by the appellant during investigation, enquiry and trial shall be set off from the substantive sentence imposed upon him in terms of Section 428 of the Code of Criminal Procedure.
A copy of the judgment along with L.C.R. be sent down to the trial Court at once for necessary action.
Urgent Photostat certified copy of this order, if applied for, be given to the parties on priority basis upon compliance of all formalities.
(Joymalya Bagchi, J.) I agree.
(Ravi Krishan Kapur, J.) PA to J. Bagchi, J.