Calcutta High Court (Appellete Side)
Subhasish Ghosh @ Bachchu Ghosh vs The State Of West Bengal And Anr on 17 December, 2018
Author: Joymalya Bagchi
Bench: Joymalya Bagchi, Ravi Krishan Kapur
Form No. J(1)
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLTE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Joymalya Bagchi
&
The Hon'ble Justice Ravi Krishan Kapur
C.R.A. 737 of 2017
(CRAN 13571 of 2018)
Subhasish Ghosh @ Bachchu Ghosh
-vs-
The State of West Bengal and Anr.
with
C.R.A. 725 of 2017
(CRAN 198 of 2018)
Rathin Pal @ Ramu Pal
Vs.
The State of West Bengal and Anr.
For the Appellant
in CRA 737 of 2017 : Mr. S. S. Roy,
Mr. A. Ghosh
Amicus Curiae
In CRA 734 of 2017 : Mr. Bibhasan Bhattacharya
For the Appellant
in CRA 725 of 2017 : Mr. Nilay Sengupta,
Ms. Swati Agarwal
For the State : Mr. Madhu Sudan Sur,
2
Mr. Manaranjan Mahata
Heard on : 5.9.2018, 10.10.2018, 13.11.2018 &
3.12.2018
Judgment on : 17.12.2018
Joymalya Bagchi, J.:
Both the appeals are being heard analogously and are being disposed of by a common judgment and order.
Both the appeals are directed against the judgment and order dated 13.11.2017 & 14.11.2017 passed by the learned Additional Sessions Judge, 1st Court, Serampore, Hooghly in Sessions Trial No.02(1) of 2015 and Sessions Case No.148 of 2014 convicting the appellant Subhasish Ghosh @ Bachchu Ghosh for commission of offence punishable under Sections 376/302/201 of the Indian Penal Code and convicting the appellant Rathin Pal @ Ramu Pal for commission of offence punishable under Sections 201/506 of the Indian Penal Code and sentencing the appellant Subhasish Ghosh @ Bachchu Ghosh to suffer rigorous imprisonment for 10(ten) years and to pay a fine of Rs.25,000/- each in default of fine to suffer simple imprisonment for another 10(ten) months for the offence punishable under Section 376 of the Indian Penal Code and to suffer R.I. for rest of his life with fine of Rs.25,000/- for the offence punishable under Section 302 of that Indian Penal Code and to suffer rigorous imprisonment for 5 (five) years with a fine of Rs.10,000/- in default to suffer simple imprisonment for another 5 (five) months for the offence punishable under Section 201 of the Indian Penal 3 Code and sentencing the appellant Rathin Pal @ Ramu Pal to suffer rigorous imprisonment for 5 (five) years with a fine of Rs.10,000/- in default to suffer simple imprisonment for another 5 (five) months for the offence punishable under Section 201 of the Indian Penal Code and also to suffer simple imprisonment for 2(two) years with a fine of Rs.5,000/- in default to suffer simple imprisonment for another 2(two) months for the offence punishable under Section 506 of the Indian Penal Code. All the sentences run concurrently.
Prosecution case as levelled against the appellants is to the effect that on 04.07.2014 at 1.20 P.M. P.W.1 along with her daughter went to a cyber café situated in the ground floor of their flat. At 1.25 P.M., P.W.1 went to her flat to drink water leaving her daughter in the cyber café. She returned after five minutes but could not see her daughter in the cyber café. She looked around the café but could not find her daughter. She returned to her flat at 2 P.M. and saw a gathering near a meter box in the eastern side of her flat and found her daughter was lying there in agony. At that time Bachchu, the appellant in CRA 737 of 2018, informed her that he had picked up the victim from the road and kept her there. Bachchu was her neighbour and the owner of a shop named and styled as 'Ma Kamakhha Bhandar'. P.W.1 noted that the string of the salwar of her daughter was torn, her inner garments were torn. There were two blue patches around her throat, rice and froth were coming out from her month and there were abrasions on her buttock. Being helpless she requested Bachchu to call an ambulance, but he procastinated. Thereafter, the ambulance came and her daughter was taken to Re Life Nursing Home for treatment. When she requested 4 to Bachchu call the police, the latter admonished her saying "Do you have no sense, although you are so old? Why will police come? Tell everyone your daughter had suffered a heart attack". The doctor of the Nurshing Home declared her daughter dead and informed her that her daughter had died due to strangulation and sexual assault. At that time Bachchu told her husband, P.W.2 to contact Rathin Pal @ Ramu, a former Councillor of the locality, appellant in CRA 725 of 2018. They went to the residence of Rathin Pal who told P.W.1 & P.W.2 not to lodge F.I.R. He made a phone call from the mobile phone of P.W.2 and deleted the call list. Post mortem was held over the dead body of the victim. Meanwhile police came to the spot and on reaching the roof of the apartment of P.W.1, they found two sandals of her daughter scattered on the opposite sides of the roof and her scarf (orna) was dirty and lying in a ball. Beside it they also found the victims's purse. It is alleged Bachchu used to stare at the victim with his lustful eyes. He used to follow her and had touched her with ill motive on earlier occasions. Out of shame the matter was not reported. A week prior to her death, the victim had informed her mother that Bachchu was planning to commit mischief on her. On the written complaint of P.W.1, F.I.R. was registered in the instant case being Uttarpara P.S. Case No.251 of 2014 dated 16.07.2014 under Section 302/201/376/506/120B of the Indian Penal Code against appellant Bachchu Ghosh and unknown others. In the course of investigation, appellant Bachchu Ghosh was arrested and his blood sample was collected for the purpose of forensic examination with the blood/semen stains on the wearing apparels including the scarf of the victim. Forensic report was received implicating the 5 appellant Bachchu and in conclusion of investigation charge sheet was filed against both the appellants under Sections 302/201/376/506/120B of the Indian Penal Code. The case being a sessions trial one was committed to the Court of Sessions and transferred to the Court of Additional Sessions Judge for trial and disposal. Charges were framed against the appellants under different heads to which they pleaded not guilty and claimed to be tried.
In the course of trial, prosecution examined 23 witnesses and exhibited a number of documents to prove its case.
Mr. Roy, learned counsel appearing in CRA 737 of 2018 as well as Mr. Bhattacharya, learned amicus curiae argued that there is inordinate delay in lodging the first information report. Prior lascivious conduct of the appellant towards the victim has not been established. The links in the chain of circumstances pointing to the guilt of the appellant has not been proved beyond doubt. Owner of the Cyber café was not examined. No independent evidence is forthcoming to establish the presence of the petitioner at the cyber café prior to the incident. There is no evidence that the appellant was last seen with the victim prior to the incident. Evidence of P.W.7 with regard to the presence of the appellant in the locality prior to the incident ought not be relied upon as the said witness himself is accused in the case of trafficking. It is also argued that no complaint was lodged by P.W.1 & 2 at the time when inquest was held over the dead body of the victim at the hospital. Evidence of the chance witnesses P.W.4 & 5 suffer from gross infirmities. Both the witnesses were belatedly examined and T.I. Parade examination was held on 22.8.2014 & 03.09.3014 much after the arrest of the appellant on 18.07.2014. Conduct of the chance witnesses in keeping mum till the incident was reported in the newspaper also raises doubt about their authenticity. Recovery of the scarf and other wearing apparels of the victim from the terrace of the apartment where the victim lived about 12 days after their discovery is most artificial. Had the said articles been found on the date of occurrence, the same would certainly have been handed over to the police immediately. There is no evidence to connect the appellants with the 6 discovery of the said wearing apparels of the victim from the roof of the apartment and the vital link between the discovery of the articles on 4.7.2014 and those which were seized by the police subsequently on 16.7.2014 has snapped. Hence, opinion of CFSL expert (Ext 44) that there was DNA matching between the blood group of the appellant and the semen found on the scarf is of little significance. Furthermore, there is no evidence how blood collected from the victim was preserved by the investigating agency from 1.8.2014 to 5.9.2014 when it was received by CFSL department. It is, therefore, argued that the chain of circumstances have not been proved beyond doubt and do not establish the guilt of the appellant beyond reasonable doubt. Identification of the dead body has also not been proved. Oral submission was supplemented by a written argument and reliance was also placed by various authorities.
On behalf of the appellant Rathin Pal, it was submitted that there is hardly any evidence on record to show that he had sought to screen the offender. The appellant was a former councilor of the locality and has been falsely implicated in the instant case out of political rivalry. Allegation that he told P.W 1 and 2 not to lodge FIR is significantly absent in the written complaint lodged by P.W 1. On the other hand, explanation for delay given by P.W 1 in the FIR is due to mental depression and not dissuasion at the behest of the appellant Rathin Pal. It is also argued deposition of prosecution witnesses that he had used the mobile phone of P.W 2 to give instructions to someone to take care of the place of occurrence while he handled the hospital authorities has not been proved by producing call detail records of the said mobile phone. Allegation that the appellant had sought to prevent conducting post mortem of the victim is also improbable as none of the medical personnel examined in the instant case claimed that they had been requested not to conduct post mortem at the behest of the said appellant. Finally, it is argued that the depositions against the appellant are in the nature of 7 afterthought and stated for the first time in the court. Hence, he ought to be acquitted of the charges levelled against him.
In reply, learned counsel for the State submitted that the instant case involves a heinous crime of rape and murder of a young lady. Not only the victim was brutally raped and murdered but the perpetrators of the crime had indulged in a macabre plot to wipe out their foot prints by misguiding the police and others in believing that the victim had committed suicide by jumping from the roof of her apartment. In order to probabilise such defence theory the scarf and other articles of the victim were planted on the roof by the appellants and appellant Bachhu Ghosh gave out a false story of heart attack which is patently improbable in view of the dishevelled condition of the wearing apparels of the victim and other injuries on her body. Rathin Pal sought to protect the principal accused Bachchu and had telephoned others to take care of the place of occurrence while he took steps to dissuade the hospital authorities using his political influence. He had also persuaded P.W 1 and 2 not to lodge FIR. In fact, witnesses claimed that they had been threatened in the course of trial and general diary was lodged. An atmosphere of fear and confusion engineered by the appellants prevailed at the time of holding post mortem examination as would appear from the evidence of P.W 3, the driver who claimed that Rathin Pal had stated to others that no FIR shall be lodged. Evidence of P.W 22 CFSL expert showed that the semen found on the scarf of the victim matched with the blood group of appellant Bachhu Ghosh. P.W 2 found Bacchu Ghosh near the mortally wounded victim immediately after the occurrence. Bachhu Ghosh threatened her 8 not to call the police and claimed that the victim had suffered a heart attack. Conduct of Bacchu Ghosh in spreading false information regarding the distressed state of the victim and his dissuading P.W 1 from calling police immediately after the occurrence is inexplicable and point to his guilt. These circumstances clenchingly connect appellant Bachhu Ghosh with the murder and rape of the victim. No explanation is forthcoming from the said appellant to exonerate him and his faint plea that he saw the victim lying on the road with such injuries does not pass muster in view of the forensic report which shows DNA of his blood group matched with the semen marks on the scarf of the victim. Hence, he prayed for dismissal of the appeal.
The circumstances relied upon by the prosecution as culled out from the aforesaid submissions to bring home the guilt of the appellant may be enumerated as follows:
(a) Appellant Bachhu Ghosh used to look at the victim with lustful eyes. He had misbehaved with the victim earlier but such fact had not been reported to the police out of shame.
(b) On 4.7.2014 victim along with her mother (P.W.1) went to cyber café in the ground floor of their apartment around 1.20 p.m.
(c) At about 1.25 p.m. P.W.1 went upstairs to drink water and upon returning to the cyber cafe after five minutes did not find the victim in the café.
(d) P.W.1 searched nearby areas for her daughter, but in vain;
(e) When she returned to her flat at 2 p.m., she heard a commotion near the meter box on the eastern side road below their apartment. She rushed to the spot and found Bachhu Ghosh standing there. She found her daughter with injuries on her neck and on the upper portions of her breast. String of her salwar was untied and her wearing apparels including inner garments had been torn.9
(f) Bachhu delayed bringing an ambulance and when P.W.1 wanted to call the police, Bachchu admonished her and claimed that her daughter had suffered a heart attack.
(g) P.Ws.9 and 11, doctors of Relife Nursing Home stated that the victim had died due to strangulation and sexual assault.
(h) Immediately thereafter, Bachchu took P.W.2, father of the victim to Rathin Pal, an ex-councillor who told P.W.1 & 2 not to lodge F.I.R. or conduct post mortem. Rathin telephoned someone from the mobile phone of P.W. 2 and told him to take care of the flat while he handled the matters at the nursing home.
(i) P.W.18, post mortem doctor and P.W.21, an expert who opined on the cause of death of the victim corroborated the view of other medical personnel and denied the defence version that the victim had died due to a fall from the roof.
(j) Scarf and other articles of the victim were found on the terrace of her apartment and were sent for FSL examination along with blood sample collected from the appellant.
(k) Semen found on the scarf of the victim matched with the DNA in the blood sample of the appellant.
Prosecution has led the following evidence to prove the aforesaid circumstances: -
P.Ws.1, 2 and 10 are the relations of the victim. P.W.1 deposed that the victim was her daughter who was employed in TCS, Rajarhat and was also pursuing her higher studies. On 4.7.14 the victim was at home as she had taken leave from office. Around 12.00 - 12.30 p.m. the victim told her that she was going to cyber café to do computer related work. P.W.1 told that she would accompany the victim. At around 1.15 p.m. she along with the victim went to the cyber cafe named and styled as "Silicon Cyber Café" owned by Subrata Saha on the ground floor of their building. After sometime, P.W.1 went upstairs to her room and after 5-10 minutes she returned to the cyber café. At that time she could not find the victim in the café. She asked Subrata, owner of the café about the whereabouts of the victim but he could not enlighten her.
She searched for the victim around the area. She also informed her husband who had gone out 10 for work that the victim was missing. At about 2.00 p.m. she found the victim lying on the eastern side of their building on a cemented floor by the side of a meter box. She found that the wearing apparels of the victim were torn. There were strangulation marks on her neck and froth was coming out from her mouth. There were bruises on her buttock. The victim was groaning. People gathered at the place of occurrence. She found Bachchu Ghosh standing near the body of the victim. Bachchu told her that he had seen the victim lying on the road and had dragged her onto the raised structure. She requested Bachchu to call an ambulance. Bachchu wasted time and after 15 minutes an ambulance came which could have come earlier. They took the victim to Relife Nursing Home. She asked Bachchu to call the police, but he stated that she has no sense although she was advanced in age. There was no necessity to call the police as her daughter had suffered a heart attack. At Relife Nursing Home victim died. The attending doctors told P.W.1 that the victim had been raped and murdered. Bachchu, however, refused to admit that the victim had been raped and murdered. In the Nursing Home Bachchu told P.W.2, father of the victim, to accompany him to the residence of Ramu Pal, a former counillor, who would settle the matter. Thereafter, Bachchu took P.W. 2 on his motorcycle to the residence of Ramu Pal. Subsequently P.W.2, Bachchu, Ramu Pal and others returned to the nursing home. Ramu Pal took the phone of P.W. 2 and telephoned someone and told him to take care of the flat while he took care of the nursing home. Ramu Pal told them that no loose comments should be made to the police and no police case would be registered. There would be no post mortem in the instant case. Subsequently, police came and took body of the victim to Uttarpara State General Hospital for post mortem examination. She lodged written complaint on 16.7.2014 which was drafted on 13.7.2014 by her husband (P.W.2) as per her instruction. She proved her signature on the said written complaint. Police came to the place of occurrence and as per information of Ramu Pal found scarf (orna) and chappals (slippers) of the victim were discovered in the terrace of their building. After lodging F.I.R. on 16.7.2014 police seized the orna and chappals of her daughter from the terrace of the building under a seizure list (Ext.2/1). Bachchu had an ill motive towards her daughter. He touched her on one pretext or the other. Due to shame they could not say anything earlier. Her deceased daughter had told that Bachchu had bad intentions and was 11 planning some mischief with her. Statement of P.W.1 was recorded under Section 164 Cr.P.C. by a Magistrate (P.W.13).
P.W.1 was extensively cross-examined with regard to her previous statements in the first information report as well as before the Magistrate.
P.W.2, father of the victim has substantially corroborated the evidence of the mother, P.W.1. He deposed he received telephone call from his wife while he was on his way to Kolkata that the victim was missing. Subsequently he got another phone call that his daughter was lying on the road and he was requested to return immediately. When he returned home he was informed that his daughter had been taken to Relife Nursing Home. He went to the nursing home and found strangulation marks on the neck of his daughter. The attending doctors stated that the injury marks probabilised that her daughter had been assaulted and raped. Bachchu Ghosh informed him that he had seen his daughter lying on the road and had lifted her on the raised platform. Thereafter Bachchu Ghosh told him that he would take him to Ramu Pal who would manage everything. He went to the residence of Ramu Pal with Bachchu Ghosh. Thereafter Ramu Pal with his brother Shamu Pal came with him to the nursing home. Ramu Pal took his telephone and called someone and told him to manage the matters at the flat while he would take care of the affairs in the nursing home. Thereafter he deleted the phone calls from his mobile. Ramu Pal told them not to make any loose talk before the police. He also told that there will be no post mortem of the dead body of the victim. The deadbody of his daughter was taken to Uttarpara State General Hospital for post mortem examination. Next day her body was brought to Serampore Walsh Hospital for post mortem examination. Inquest was held over the deadbody of the victim at the nursing home. He signed on the inquest report. He scribed the written complaint lodged by his wife (Ext.1). On 4.7.2014 Ramu Pal informed police that his daughter's orna and chappal were in the terrace of their building. Subsequently, said orna and chappal were seized after registration of first information report (Ext.2/2). His statement was recorded before the Magistrate under Section 164 Cr.P.C. (Ext.5).
P.W.3 is the driver of the vehicle who carried the deadbody of the victim from Uttarpara State General Hospital to Serampore Walsh Hospital for post mortem examination. He deposed he 12 had been called by one Bhanu Bose who told him to go to Uttarpara and park his car in front of the house of Ramu Pal. The latter told him to go to Uttarpara State General Hospital. While he was waiting inside the car, Ramu Pal had told 3/4 persons not to inform the matter to the police. He also carried the deadbody of the victim to the crematorium. His statement was recorded under Section 164 Cr.P.C.
In cross-examination he stated that he could not disclose the identity of the persons to whom Ramu Pal had stated that no first information report would be lodged.
P.W.10 is the sister of the victim. She deposed upon hearing the incident she reached Relife Nursing Home around 4.35 p.m. She stated that many people had gathered at the nursing home. She saw Bachchu Ghosh, Ramu Pal at the nursing home. She heard Ramu Pal saying that no case shall be filed as the victim had died due to a heart attack.
P.Ws.4 and 5 are witnesses who had seen the victim being dragged by the appellant from the road onto a raised platform. P.W.4 is an employee of a private company in Kolkata. He stated that he resided at Bhadrakali, which is at a 5/7 minutes walking distance from Radha Gobinda Nagar, Hindmotor. He deposed on 4.7.2014 he was going to Hindmotor Railway Station via BBD Road around 1.30 p.m. At Radha Gobinda Nagar Road near the Shiva Temple he saw a man dragging a lady by holding her hand. It appeared that the lady was sick and he was her family member. So, he proceeded from the spot. 10-12 days thereafter, he saw a news item that on 4th July, 2014 a lady had been raped and murdered. After reading the newspaper he went to the police station and informed the matter to the police. His statement was recorded under Section 164 Cr.P.C. He attended TI Parade and identified the appellant in jail.
In cross-examination he stated 20-22 days after his visit to the police station, he was produced before the Magistrate.
P.W.5 deposed that he is a resident of Bandel, Hooghly. He had come to Jayanta Nagar, Hindmotor to meet his brother-in-law. Around 1.30 noon he had gone to roam around BBD Road when he noted a person dragging the victim holding her hand. He asked the person what had happened to the lady and the person replied that she had become unconscious. Subsequently he read about the incident of rape and murder of a lady on 4th July, 2014 in the newspaper and 13 went to the police station. His statement was recorded before the Magistrate under Section 164 Cr.P.C. He also identified the appellant Bachchu Ghosh before the Magistrate in the course of TI parade.
In cross-examination he, however, stated that he could identify Bachchu Ghosh at the correctional home as he knew him before the incident.
P.W.7 Santosh Pradhan stated that he was a member of the locality and on the fateful day he had met Bachchu Ghosh who was roaming around RG apartment. His statement was recorded before the Magistrate (P.W.15) under Section 164 Cr.P.C.
In cross-examination he, however, admitted that he was an accused in a criminal case relating to rape and trafficking of women.
P.W.8 Amit Bose deposed Bachchu had requested him to influence the police and help him in the incident of death of the victim. His statement had also been recorded under Section 164 Cr.P.C. before the Magistrate (P.W.15).
In cross-examination the said witness, however, admitted that he was a witness in other criminal case.
Medical evidence was led through P.Ws.9 and 10 who treated the victim at Relife Nursing Home and P.Ws.18 and 19 who were the post mortem doctor and the expert who opined on the post mortem report respectively.
P.W.9 deposed that the victim was admitted as a patient at Relife Nursing Home, Uttarpara on 4.7.2014 at 5 p.m. She was admitted under Dr. Manoj Pal (P.W.10), Dr. Arindam Sur and Dr. Debasish Sarkar. He prepared injury report of the victim (Ext.16 and 16/1). He proved the admission form and treatment sheet of the victim (Ext. U and V). Police seized injury report of the victim under a seizure list. When the patient was brought to the nursing home she was gasping. Food contents were regurgitating from her mouth. She was referred to ICCU under Dr. Pal. Her upper portion of the dress was in torn condition around her chest. Her under garments were also torn. The inner aspect of both thighs of her dress were also torn. The string of her pajama was torn and there were mud stains on the rear part of her pajama. He found 14 bloodstains on her chest wall and blood coming from her genitalia. There were bilateral bruise marks on both sides of neck. There were large areas of abrasions over back of both thighs and buttocks. There were diffused bruise marks upon inner aspect of left breast. There were multiple small bruises over anterior surface of chest wall. There was small bite mark over the breast. In response to queries made to him by the police he submitted a written reply dated 20.7.2014 (Ext.19 and 19/1). He stated that the bruise marks may be due to violent attempt of throttling. He stated that he had found multiple bruise marks over both breasts and anterior chest wall and blood was oozing from vaginal area of the deceased. From the said injuries on the body of the deceased it may be assumed that she was subjected to violent sexual assault. The victim died at 4.30 p.m. P.W.11 Dr. Manoj Kr. Pal had treated the victim. He proved the original admission form and history and treatment sheet of the victim. In response to a questionnaire sent by the police, he submitted answers (Ext. 24 and 24/1). He had replied to the police that he found bruise marks on the anterior aspect of throat, bloodstains over vagina. He opined that such bloodstains over vaginal area was indicative of forcible sexual assault. From the injuries over the body he opined that the victim had died asphyxial death with sexual assault. He made statement before the Magistrate (P.W.15).
P.W.18, Dr. Rakhamouli Mukherjee held post mortem over the body of the victim. He found the following injuries :-
1. Two distinct brownish marks were present at sub mandibular region on both sides of chin showing parchmentisation of skin.
2. Multiple bruise marks were present over both breasts, predominantly over left breast. Two rear small punctured wounds were present over right breast on either side of nipple.
3. Subcutaneous hematoma (Vol. 10cc approx) present over lung sternum.
Hematoma (Vol. 20cc approx) were also present below the sternum with soft tissue laceration of anterior media sternum.
4. Both lungs were ruptured at posterior aspects with formation of hamothorax. 15
5. Small sub dural haematoma (Vol. 30cc approx) was present at frontal region.
6. Small haematoma (Vol. 50cc approx) noted at left perinephric area.
7. Large raw abraided area present on both buttocks and posterior aspect of both thighs.
8. Abrasion also present on ventral aspect of both wrist joint and medial aspect of both thighs.
9. A small bruise mark present in the in ulterior abdominal wall near umbilicus." He gave similar responses as P.Ws.9 and 11 to the queries posed by the Investigating Agency. He, however, stated that no injuries were present inside the vagina. After considering FSL report (Ext.33) he gave final opinion as to cause of death (Ext.24).
In cross-examination he stated that injury nos.1, 2 and 3 are not consistent with the theory of fall from a height of 30 ft.
P.W.21, Dr. Biswajit Sukul was the Professor and Head of the Department, Forensic and State Medicine, Medical College, Kolkata. He furnished opinion in response to the queries made by the Investigating Agency (Ext.39 and 39/1). He opined that throttling mentioned by autopsy surgeon could cause asphyxial death and cardio respiratory failure. Injuries mentioned in the post mortem report are consistent with findings of forcible sexual violence. Injuries found on the different parts of the body are not consistent with the injuries which may be found in case of fall from a height of 45 to 50 ft.
P.W.13 to 16 are Judicial Magistrates. P.W.13 recorded the statement of P.Ws.1 and 2 under Section 164 Cr.P.C. P.W.14 recorded the statement of P.Ws.5, 7 and 8 under Section 164 Cr.P.C. and conducted TI Parade examination of the appellant Bachuchu Ghosh. P.Ws.4 and 5 identified Bachchu Ghosh in the course of such examination. P.W.15 recorded the statement of P.Ws.3 and 4 while P.W.16 recorded the statement of P.Ws.9 and 11 under Section 164 Cr.P.C. in the course of investigation.
16
P.W.17 is a photographer who took photographs of the victim at Relife Nursing Home. He proved the said photographs (Ext. Y series and Ext. Z series). He handed over the photographs, camera and memory card to the Investigating Officer. He identified the memory card in court.
P.W.20, Dr. Shyamashree Chakraborty was posted at Serampore Walsh Hospital as Medical Officer at the material point of time. On 21.7.2014 and 1.8.2014. Bachchu Ghosh was produced before her for semen collection. He, however, declined to give his semen.
P.W.22, Dr. Amit Kumar Sharma was posted as Deputy Director, Central Forensic Laboratory, Kolkata. He proved the exhibit challan (Ext.4) received by Central Forensic Laboratory, Kolkata in connection with this case. He was authorized (Ext.14) by Director of CFSL to conduct forensic examination of the exhibits. Exhibits were marked as Exts. A to M. Ext. A was a sealed packet containing scarf of the deceased. Ext. M was a packet of blood sample of accused, Bachchu Ghosh. He prepared his examination report (Ext.42 and 42/1). He proved the blood sample authentication form (Ext.43). He proved the letter sent by the Director, CFSL, Kolkata forwarding the forensic report (Ext.44). In his report he stated opinion of DNA of blood sample of accused Bachchu Ghosh matched with human semen detected in Ext. A, i.e. scarf of the deceased.
In cross-examination he admitted that if blood sample is not preserved, it would degrade due to environmental condition. After receipt of blood sample the laboratory kept it at a temperature of -20 Deg.C. The blood sample was collected on 1.8.2014 and received on 5.9.2014.
P.W. 23 is the investigating officer in the instant case. He deposed on 16.07.2014 one Uma Dutta lodged written complaint at Uttarpara P.S. He received the same marked as exbt. 1/3. He proved the formal FIR marked as exbt. 45 and 45/1. He went to the place of occurrence and prepared draft sketch map marked as exbt. 46 and 46/1. He proved the print outs of the photographs marked as exbts. 46/2 series. He examined available witnesses and recorded their statement under Section 161 Cr.P.C. He seized one orna (scarf) and one pair of chappal of the deceased. The house of the accused persons were under lock and key. He arrested Rathin Pal. Subsequently he arrested Bachchu Ghosh from Lahoal, Assam. He seized all documents from 17 Relife Nursing Home. Accused Bachchu Ghosh refused to give semen. He collected his blood sample. He seized one identity card of deceased and one white shirt, one track suit and one jangia of Bachchu Ghosh under a seizure list. These wearing apparels were worn by him at the time of commission of crime. He seized the injury report of the victim under a seizure list. He recovered one mobile phone from Rathin Pal. He sent viscera of the victim for FLS examination. He seized one black coloured nikon camera by which the photographs of the deceased were taken and its memory card. He collected extract copy of the diary with regard to the threat given to the complainant marked as exbt. 55. He collected call records of P.W. 2 as well as the wife of accused Bachchu Ghosh. Tower locations were also located. He sent the seized articles and blood sample for FSL examination. He arranged for holding T.I. Parade examination of accused Bachuchu Ghosh. P.W.4 and 5 identified Bachchu Ghosh during T.I. parade. He seized register of cyber café. He collected cremation certificate of the deceased from the burning ghat marked as exbt. 59. He submitted charge-sheet against accused persons. Subsequently, he collected viscera report from FSL and submitted supplementary charge sheet. In cross-examination he admitted that he noted in the case diary that the victim was seen in the cyber café by the owner of the cyber café, and Rohan Tiwari and Tuhin Das @ Dip Das. Wearing apparels of the victim were collected by Rathin Pal @ Ramu Pal. He deposed that no witness stated before him that orna and chappal were on the terrace of the victim. Bachchu Ghosh and Rathin Pal @ Ramu Pal had disclosed such fact to him. No label was pasted in the body of orna and chappal which were seized. Blood sample was collected on 01.08.2014 and sent for chemical examination on 05.09.2014. Blood sample was kept at the malkhana's refrigerator. No note was made in the CD that preservative was given to the blood sample.
From the evidence on record particularly that of the medical witnesses, namely, P.Ws. 9, 11, 18 and 21, it appears that bruise marks were found on the anterior aspect of the throat of the victim. There were injuries including bite marks on her breast and bruises on her buttocks. Blood was oozing out from her vagina. Her wearing apparels were torn. From the aforesaid injuries the postmortem doctor (P.W.18) and other medical witnesses concluded that the victim had been forcibly raped and suffered asphyxial death due to throttling. 18
The question is who was responsible for such brutal murder and rape of the victim? The evidence of P.W. 1 shows that on the fateful day at around 1.15 p.m. she had accompanied her daughter to the cyber café situated in the ground floor of their apartment. She went upstairs to her room and when she returned after five minutes her daughter was missing. She asked the owner of the cyber café about her whereabouts. Thereafter, she went out to search her daughter in the nearby area but could not trace her. She telephoned her husband, P.W. 2 and informed him that their daughter was missing. Soon thereafter she noticed that her daughter was lying in the eastern side of her apartment on a raised platform near the meter box. Wearing apparels including the string and lower portion of her salwar and upper portion of her dress and inner garments around her breasts were torn. She also found some bruise marks on her neck. There were bruise and bite marks on her breasts and buttocks. Bachchu Ghosh who was a neighbour of P.W.1 was standing there and he claimed that he had found the victim on the road and dragged her to the raised platform. When P.W.1 requested Bachchu to call an ambulance he delayed the matter. Subsequently, when she requested him to contact police he reprimanded her and stated that there was no necessity to contact the police as the victim had suffered a heart attack. Subsequently, the victim was taken to Relife Nursing Home where she was treated by P.Ws. 9 and
11. The medical personnel noted extensive injuries on the victim. In spite of earnest efforts, they could not save the victim. P.W.1 was informed that the victim had been raped and murdered. Bachchu Ghosh persuaded P.W. 2, father of the victim, to meet Rathin Pal, an ex-councilor, at his residence as he would settle the matter. Rathin came to the spot and stated that no FIR would be lodged and no post mortem would be conducted. However, post-mortem was conducted on the body of the victim. Police came to the residence of P.W.1 and found the scarf and other articles of the victim on the roof of their apartment. Subsequently, on the registration of first information report the aforesaid articles were seized and sent for FSL examination along with the blood sample of accused Bachchu Ghosh. Report of FSL examination showed that the DNA in the blood sample of Bachchu Ghosh matched with the semen stains on the scarf of the victim.
The evidence of P.W. 1 has been substantially corroborated by her husband, P.W. 2 and her elder daughter, P.W. 10. That apart, independent witnesses, P.Ws. 4 and 5 deposed that they 19 saw the appellant dragging the victim down the road beside her apartment. Both these independent witnesses identified the appellant in the course of T.I. Parade.
The prosecution case has assailed by the appellants on various score. It is contended that there was delay in lodging the first information report. Although, the incident occurred on 4th July, 2014 the FIR was scribed on 13th July, 2014 and came to be lodged on 16th July, 2014. The medical evidence on record clearly establishes a violent end to the victim who suffered death due to throttling after she had been forcibly raped. A gruesome and untimely end cut short the life of the victim who according to her mother, P.W.1 was at the door step of entering a new phase in her life by way of matrimony. It is most natural that this gruesome incident had terribly shocked the parents of the victim and they were unable to immediately set the criminal law into motion. Moreover, there are evidence on record that accused Bachchu Ghosh and Rathin Pal discouraged them from lodging FIR. Rathin Pal was a former councilor of the locality and appears to have considerable influence in the area. Accordingly, I am of the opinion delay in lodging FIR the instant case was caused due to shock suffered by the family of the victim as well as the discouragements from the end of the appellants and cannot be a cogent ground to disbelieve the prosecution case of rape and murder.
It has been argued that nobody had seen the appellant with the victim prior to the incident and the prosecution had held back the best evidence, namely, the owner of the cyber café in the instant case. I find from the evidence on record that P.W. 1 had initially accompanied her daughter to the cyber café and subsequently when she returned to the said cafe she found her daughter missing. She enquired from the owner of the café about her whereabouts but he could not enlighten her. She searched in vain for her daughter in the nearby area. Subsequently, the victim was found lying in a disheveled condition with severe injuries on a raised platform near the box beside her apartment. Bachchu Ghosh was standing beside her and stated that he had dragged the victim from the road to the raised platform.
The evidence of P.W. 1 is convincing and clearly unfolds the prosecution case. Hence, non- examination of the owner of the cyber café in my assessment does not erode the unfolding of the prosecution case in any manner whatsoever. On the other hand, the evidence on record 20 establishes the presence of appellant Bachchu Ghosh with the victim who was found in a disheveled condition with severe injuries in her throat and private parts. The evidence of P.W. 1 in this regard is corroborated by P.Ws. 4 and 5. Their evidence have been criticised on the ground that they did not raise any hue and cry upon seeing the incident and were examined belatedly by the police. T.I. Parade was also held after more than a month from the arrest of accused Bachu Ghosh. Analysis of evidence of P.Ws. 4 and 5 would show that they have been given explanation why they were present at the spot.
P.W. 4 claimed that the spot is at 5/7 minutes walking distance from his residence. He was crossing Radhagobinda Road on his way to Hindmotor Railway Station. Such conduct of P.W. 4 cannot be said to be unnatural. At that time, he saw a man dragging a lady who was unconscious. He thought that the lady was sick and the said person was her family member. Hence, he did not protest and went down his way. However, when he read the newspaper disclosing a case of rape and murder he contacted at the police and thereafter identified the appellant in the course of T.I. parade examination.
Similarly P.W. 5 had come to visit a relation who resided near the place of occurrence. On the fateful day P.W.5 was roaming in the area when he saw a man dragging a lady down the road. He even enquired of the person what had happened and had even offered to help.
On an analysis of their evidence, I note that both the witnesses had explained the circumstance in which they were present at the spot. Such explanation is neither improbable nor artificial. They have also given reasons why they had not raised hue and cry after seeing the incident. After reading the news of rape and murder in the newspaper did they realise the gravity of the incident and forthwith contacted the police. Their statements had been recorded before the Magistrate. Their depositions in court are substantially corroborated by their earlier statements before the Magistrate and they had also identified the appellant Bachchu in the course of Test Identification Parade as well as in court. Delay in holding Test Identification Parade has been duly examined in the factual circumstance of the case and cannot render their identification in court improbable.
21
In fact, P.W.5 had held himself out as a truthful witness and in cross- examination admitted that he had seen Bachchu before, which is not improbable as the said appellant was a person who stayed in the neighbourhood of his maternal uncle whom P.W.5 was visiting regularly. However, it is nobody's case that PW5 knew the appellant by name and therefore, his failure to name the appellant to police cannot be a ground to discount his evidence.
The aforesaid evidence on record establishes beyond doubt the presence of the appellant Bachchu with the victim who was found in an injured and dishevelled condition. In addition thereto, evidence has also come on record that the appellant Bachchu soon thereafter sought to spread false information and told P.W.1 to say that her daughter had suffered a heart attack. Such desperate canard spread by Bachchu to hide the inevitable truth relating to the genesis of injuries on the victim is inexplicable. Bachchu also chided P.W.1 and told her there was no need to call the police. These circumstances add links to the chain of other circumstances pointing to the guilt of the appellant. Furthermore, the appellant dissuaded PW1 from calling the police or instituting a criminal case over the incident.
The proverbial last straw is the tallying of DNA profile in the blood sample of the appellant Bachchu with the semen stains on the scarf worn by the victim. PW22 proved the report (Exhibit-42) wherefrom it appears that the DNA in the blood sample of the said appellant matched with the human semen detected on the scarf of the deceased.
22
This circumstance has been strongly criticised by the learned advocates appearing for the appellant on the premise that the scarf was recovered after twelve days of the incident. There is no evidence where the scarf was kept from the time of its alleged detection on 4th July, 2014 till its recovery on 16th July, 2014. PW1 and PW2 claimed on the showing of Rathin Pal @ Ramu Pal the scarf was detected by the police from the terrace of the building on the fateful day. However, for reasons best known to the police the scarf was not recovered till FIR was registered on 16th July, 2014. The police officer who detected the scarf has also not been examined. However, such defects do not erode the truthfulness in the versions of P.W.1 & 2 in court which stand corroborated by their earlier statements before the Magistrate under Section 164 of the Code of Criminal Procedure.
Under such circumstances, lack of investigatorial alacrity to seize the scarf or failure to examine the police officer who visited the spot on the date of the incident cannot be treated as inherent wedges in the prosecution case in view of the consistent evidence of P.W.1 and 2 relating to recovery of the scarf. The instant case is rife with lapses in investigation but it is trite law that such omissions by themselves are no ground to disbelieve a prosecution case when it is founded on truthful version of reliable witnesses.
I find no reason to disbelieve the version of the unfortunate parents namely, PW1 & 2 who claimed that the scarf (orna) worn by their daughter on the fateful day was detected by the police but was not seized. Recovering from their grief when they lodged the FIR on 16th July, 2014, did the police finally consider 23 it necessary to seize the wearing apparels and other articles of the victim and sent it for FSL examination. Even if one discounts the fact that the scarf was recovered on the showing of Rathin dealing Ramu Pal which appears to be an embellishment, the evidence on record leaves no doubt in one's mind that the scarf worn by the victim bore semen stains which matched with the DNA profite in the blood group of appellant Bachchu.
Subhasish Ghosh @ Bachchu Ghosh was found with the victim immediately after the incident and had been seen dragging her in an injured and dishevelled condition from the road onto a raised platform under the apartment where she lived. Soon thereafter he told the mother of the victim (PW1) to spread a canard that the victim had suffered a heart attack. He also scolded her and told her not to call the police. The scarf worn by the victim was recovered from the terrace of the apartment and human semen found therein matched with the blood group of the said appellant. In the course of trial, the appellant sought to probabilise a defence that the victim had jumped from the roof and died which was resoundingly rebutted by the medical witnesses namely, PW18 & 21.
The aforesaid factual backdrop gives rise to an implacable inference that the victim was in the custody of the appellant Bachchu at the time when she suffered injuries and the appellant soon thereafter sought to spread false information relating to the reason for her distress and dissuaded her mother from calling the police. Presence of human semen stains on her scarf which matched with the DNA of Bachchu intrinsically connects the latter not only with the brutal sexual assault on the victim but also invests him with the "special 24 knowledge" how the said scarf found its way onto the roof of the apartment when the victim was found lying on the road below. No explanation is forthcoming from the appellant Bachchu with regard to the incriminating presence of his bodily fluids on the scarf worn by the victim at the time of occurrence. His explanation that he found the victim lying on the road and dragged her onto a raised platform is rendered hollow in the face of aforesaid incriminating circumstance that the wearing apparel of the victim was stained with his semen. As discussed earlier, these circumstances are further fortified by the false explanation sought to be spread by the appellant relating to the cause of the distress of the victim and his desperate attempt to raise a false defence of fall of the victim from her terrace resulting in her death. It is settled law that false explanation or defence raised by an accused are additional circumstances to the chain of incriminating circumstances proved by the prosecution. In the light of the aforesaid facts I have no doubt in my mind that it was the appellant Bachchu who had ravished the victim and thereafter throttled her death. In order to cover his misdeeds he dragged the victim down the road and put her onto a raised structure beside the apartment where she lived and thereafter raised a false plea during trial that the victim had died due to a fall from the roof. In addition thereto, he persuaded the mother of the victim to raise a false plea that the victim had suffered heart attack and also dissuaded her from calling the police. Motive of the crime has also been proved. P.W.1 deposed Bachchu used to look at her daughter with lustful eyes and had touched her inappropriately on earlier occasions. Out of shame and as the victim had reached marriageable age and 25 such reports may hinder her matrimonial prospects, the parents did not report the matter to the police - a plausible yet costly error which ultimately led to her ghastly end. These circumstances fully establish the guilt of the appellant Bachchu and his conviction in the instant case cannot be faulted. Authorities relied upon by the appellant are inapposite. Jai Prakash Singh Vs. State of Bihar, (2012) 4 SCC 379, relates to the discretion of the court in ganting anticipatory bail while in Asraf Vs. State of West Bengal (2008) 15 SCC 97, acquittal was recorded as depositions of witnesses suffered from gross contradictions which is not the case here.
Coming to the role of the appellant Rathin Pal @ Ramu, I note that the prosecution has relied on the evidence of P.Ws. 1 to 3 and 10 to establish the fact that he sought to dissuade the parents of the victim from lodging F.I.R. or conduct post mortem examination of the victim. P.Ws. 1 and 2 also claimed that he had made phone call to someone from the mobile phone of P.W. 2 and stated that someone should take care at the flat while he would deal with the hospital authorities. P.W. 23 collected call detail records of the mobile phone of P.W. 2. Unfortunately such call detail records do not relate to the date of occurrence. Hence, there is no contemporaneous record to establish the prosecution case that the appellant Ramu had made a phone call requesting someone to take care of the flat occurrence while he dealt with the hospital authorities. None of the medical personnel who treated the victim at the nursing home have stated that any request was made by the appellant Ramu for not holding post mortem examination. On the other hand, P.W. 3 claimed that Ramu 26 had asked him to go to Uttarpara State General Hospital and thereafter to Serampore Walsh Hospital with the dead body for conducting post mortem report. It is not out of place to observe the allegation that Ramu had threatened P.W.s 1 and 2 not to lodge F.I.R. does not find place in the written complaint lodged by P.W. 1. On the other hand, it has been contended therein due to severe mental depression there was delay in lodging F.I.R. It is also relevant to note the plea that on the showing of Ramu scarf of the victim was discovered from the terrace is an establishment and such fact is absent both in the F.I.R. and the statement of P.W.2 before Magistrate. Even for argument's sake if I accept that Ramu had told P.Ws. 1 and 2 not to lodge F.I.R., in the absence of clear evidence that Ramu was aware or had reason to believe that co-accused Bachchu had committed the crime and had endeavoured to destroy evidence to screen the said offender, I consider it incorrect to record a conviction against him under sections 201/506 of the Indian Penal Code.
In the light of the aforesaid discussion, I uphold the conviction of appellant Subhasish Ghosh @ Bachchu Ghosh under Sections 376/302/201 of the Indian Penal Code. I also uphold the sentences imposed upon him, save and except modifying the sentence of rigorous imprisonment for rest of his life for commission of offence punishable under Section 302 of the Indian Penal Code to rigorous imprisonment for life as the sentence awarded by the Trial Judge is not one of the sentences which are prescribed for the aforesaid offence in law. The trial court does not have the power to impose life imprisonment which shall be in force for rest of the life of the convict without remission under Cr.P.C. for the 27 offence of murder punishable under Section 302 of the Indian Penal Code as such power is exclusively reserved for the High Court in the light of the law declared in Swamy Shraddananda (2) Vs. State of Karnataka, (2008) 13 SCC 767 and affirmed by the Constitution Bench in Union of India Vs. Sriharn, (2016) 7 SCC 1.
Hence, I choose to modify the sentences imposed by the trial court upon the appellant Subhasish Ghosh @ Bachchu Ghosh to the aforesaid extent. Period of detention suffered by Subhasish Ghosh @ Bachchu Ghosh during investigation, enquiry and trial shall be set off against the substantive sentences imposed upon him. All the sentences shall run concurrently. With the aforesaid modification as to sentence, the appeal being CRA 737 of 2017 along with CRAN 13571 of 2018 is dismissed.
Conviction and sentence of the appellant Rathin Pal @ Ramu Pal are, however, set aside. Rathin Pal @ Ramu Pal shall be discharged forming his bail bonds on expiry of a period of six months in terms of Section 437A of the Code of Criminal Procedure.
Appeal being CRA 725 of 2017 along with CRAN 198 of 2018 is allowed. Copy of the judgment along with the Lower Court Records be sent down to the trial court at once for necessary compliance.
I record my appreciation for the able assistance extended by Mr. Bibaswan Bhattacharya, learned amicus curiae, for disposal of the appeals.
28
Photostat certified copy of the order, if applied for, be given to the parties on priority basis.
I agree.
(Ravi Krishan Kapur, J.) (Joymalya Bagchi, J.) rkd/tamal/AB /aloke/s.das/a.das &PA