Calcutta High Court (Appellete Side)
Sabina Sabnam @ Rumi vs State Of West Bengal on 22 December, 2022
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Joymalya Bagchi
And
The Hon'ble Justice Ajay Kumar Gupta
C.R.A. 547 of 2012
Sabina Sabnam @ Rumi
-Vs-
State of West Bengal
With
C.R.A. 666 of 2012
Wahid Ali & Another
-Vs-
State of West Bengal
For the Appellants : Mr. Milon Mukherjee, Sr. Adv.,
Mr. B Manna, Adv.
Mr. Dattatreya Dutta, Adv.
... in C.R.A. 547/2012
Mr. Uday Sankar Chattopadhyay, Adv.
Mr. S S Chattopadhyay, Adv.
Mr. Santanu Majhi, Adv.
Mr. R Jah, Adv.
Ms. Trisha Rakshit, Adv.
... for appellant No. 2 in C.R.A. 666/2012
Mr. Partha Pratim Das, Adv.
... for appellant No. 1 in C.R.A. 666/2012
For the State : Mr. Saibal Bapuli, Adv.
Mr. Bibaswan Bhattacharya, Adv.
2
Heard on : 29.11.2022, 05.12.2022, 06.12.2022
12.12.2022, 15.12.2022
Judgment on: 22.12.2022
Joymalya Bagchi, J.:-
1.
Appeals are directed against the judgment and order dated
28.08.2012 and 29.08.2012 passed by learned Additional Sessions
Judge, Fast Track, 3rd Court, Burdwan in Sessions Trial No. 19/2011
arising out of Sessions Case No. 85/2011 convicting the appellants for
commission of offence punishable under sections 302/120B/201 of the
Indian Penal Code.
Prosecution case:-
2. Prosecution case against the appellants runs as follows:-
On 10.02.2011 at 10:45 p.m. a telephonic information was
received at Memari Police Station that a dead body was found inside a
Tata Sumo, (Spacio car) bearing No. WB-26C-8692 (hereinafter referred
to as 'the car'). The information was diarized by A.S.I. Bhola Nath Mal
(P.W. 2). P.W. 1 Seo Kumar Sing attached to Palsit Outpost also received
similar information over telephone. He proceeded to the spot with P.W. 3
Constable Champak Das. Arriving at Rasulpur Rail Gate, they saw the
car stranded near the rail gate. They found a dead body inside the car.
They also found Wahid Ali (1st appellant in Criminal Appeal No. 666 of
2012) sitting in the car. On interrogation Wahid stated he along with
Sabina Sabnam @ Rumi and Selima Khatun had murdered the person.
3. P.W. 1 Seo Kumar Sing lodged written complaint at Memari
Police Station resulting in registration of Memari Police Station Case No.
36/11 dated 11.02.2011 under sections 302/201/120B I.P.C. against
the appellants.
4. P.W. 25 Pranab Kumar Banerjee was entrusted with the
investigation. He proceeded to the spot. He found the car. He saw Wahid
Ali sitting in the car. On interrogation Wahid stated that he along with
his associates Sabina Sabnam @ Rumi and Selima Khatun had
murdered the victim. He held inquest over the body of the deceased. The
car and other documents were seized. In the meantime, owner of the
vehicle Upananda Koley (P.W. 21) and the driver Palash Mondal (P.W.7)
came to the spot. Palash made statement before P.W. 25. Thereafter,
P.W. 25 went to the residence of Sabina Sabnam @ Rumi and arrested
her and Selima Khatun. Mobile phones were seized from their
possession. P.W. 7 identified Sabnam and Selima in the course of test
identification parade. On the leading statement of Wahid Ali,
handkerchief used to throttle the victim was recovered.
Proceedings before the trial Court:-
5. Charge-sheet was filed against the appellants. Charges were
framed under sections 302, 201 and 120B I.P.C. Appellants pleaded not
guilty and claimed to be tried.
6. In the course of trial, prosecution examined 25 witnesses and
exhibited a number of documents. Defence of the appellants was one of
innocence and false implication.
7. In conclusion of trial, trial Judge by the impugned judgment
and order dated 28.08.2012 and 29.08.2012 convicted the appellants, as
aforesaid.
Analysis of evidence on record:-
8. P.W. 1 Seo Kumar Sing and P.W. 3, Champak Das are police
officers attached to Palsit Outpost under Memari Police Station. On
receiving telephonic information they had proceeded to Rasulpur Rail
Gate. They found a car stranded. A dead body was lying below the
middle seat. They also found Wahid Ali sitting in the vehicle. Wahid
stated he and other appellants committed the murder. P.W. 1 lodged
written complaint which was received by P.W. 24, Sanjib Ghosh attached
to Memari Police Station. P.W. 2, Bhola Nath Mal attached to Memari
Police Station proved the telephonic communication that a dead body
was found in the car which was diarized as G.D. Entry No. 617 dated
10.02.2011 (Exhibit 4).
9. P.W. 4 Sk. Jianul Islam is the owner of the shop near Rasulpur
Rail Gate. P.W. 5 Ruidas Barui is a vegetable vendor near the rail gate.
P.W. 6 Amit Sarkar has his residence near the rail gate. All the witnesses
corroborated the police witnesses with regard to the recovery of the dead
body from the car stranded near the rail gate. They also stated a man
was inside the car. They were unable to identify the said person as they
had seen him only once for a short time.
10. P.W. 7 Palash Mondal is the star witness. He is the driver of the
car. He deposed in the morning of 10.02.2011, his owner P.W. 21
instructed him to go to Reora and meet one Wahid who had taken the
car on hire. P.W. 7 proceeded towards Reora and met Wahid. The latter
asked him to go to Memari. Thereafter, two women boarded the vehicle.
Then they went to Bolpur and reached Santiniketan. At Santiniketan,
the two women got down from the vehicle. P.W. 7 and Wahid went to a
hotel. They had lunch and rested. At 5:00 p.m. they again proceeded to
the spot where the women had alighted. The said women along with the
victim boarded the car. Wahid sat in the front seat while women took the
middle seat. Victim was seated between them. The car had a seating
arrangement in three rows. After sometime, Wahid went to the backseat
to rest. When the car reached Bardhaman Rathtala victim suddenly cried
out. Upon enquiry by P.W. 7, he was told victim was a patient of epilepsy
and that he should continue driving. He was asked to raise the volume of
the tape recorder. From the rear view mirror P.W. 7 saw Wahid
strangulating the victim with a handkerchief while the two ladies held
his hands. Seeing the incident he became frightened. He realized that the
miscreants would throw the dead body and thereafter they might also
kill him. He told the appellants that police may check the vehicle at toll
plaza on Durgapur Express Way. Hearing this, appellants told him to
follow Memari Road. He tried to flee away from the vehicle during
refueling of the car but failed. When the car arrived at Rasulpur Rail
Gate, they found the rail gate closed. Taking advantage he got out of the
vehicle on the pretext of buying a cigarette and fled away. He informed
his owner. He went to his father-in-law's place. Then both of them
returned to the place of occurrence. He made statement before police
and Magistrate. He identified the female accuseds during T.I. parade as
well as in Court. He was extensively cross-examined.
11. P.Ws. 10 to 13 are the relations of the deceased. P.W. 10,
Sabina Akhtar Siddique is the wife. She deposed Rumi is the sister of
one of her sister-in-laws. She had an intimate relationship with her
husband. She was at her aunt's house at Suri at the time of occurrence.
In the morning her husband told her over telephone that he was going to
Calcutta for medical treatment and would come to Suri on the next day
to take her back. At night she was informed that her husband had been
murdered. P.Ws. 11 and 12 are the brothers of the deceased. They
corroborated his wife, P.W. 10 deposed that the deceased left in the
morning of 10.02.2011 stating he is going to Calcutta for medical
treatment. P.W. 12 further deposed there was an intimate relationship
between the deceased and Rumi. P.W. 13, Golap Mia is the maternal
uncle of the deceased. On 10.02.2011, he heard the incident. He
identified the dead body of the deceased at Memari Police Station.
12. P.W. 7 is corroborated by the owner of the car, Upananda Koley
P.W. 21.
13. On 22.02.2011, P.W. 23 S.K. Dhar, Judicial Magistrate
conducted T.I. parade. P.W. 7 identified Sabina Sabnam @ Rumi and
Selima Khatun in the course of T.I. parade.
14. P.W. 25 Pranab Kumar Banerjee took over investigation of the
case. He proceeded to the place of occurrence. He held inquest over the
dead body. He interrogated Wahid. He recorded the statement of P.W. 7.
He went to the residence of Sabina Sabnam @ Rumi. He arrested
Sabnam and Selima Khatun from Rumi's residence. P.W. 9, Mala Panja,
Member, National Volunteer Force and P.W. 8, Tulika Mondal, a lady
constable accompanied P.W. 25 during the raid. Two mobile phones
bearing Nos. 8348322435 and 8145580693 were recovered from them.
8348322435 stood in the name of Tapan Hansda and was in the
possession of Selima Khatun while 8145580693 standing in the name of
Selima Khatun and was in the possession of Sabina Sabnam @ Rumi.
15. P.W. 19, Tapan Hansda deposed he had two SIM cards and one
of which had been handed over to Sabina Sabnam @ Rumi on her
demand. CAFs, CDRs and Call Subscriber Details of the aforesaid mobile
phones as well as that of the deceased bearing No. 9732620125 were
collected. CDRs of the aforesaid mobile phones were exhibited as Exhibit
25 collectively.
16. On 12.02.2011 on the identification of Wahid, he recovered
handkerchief used for committing the murder. Recovery was made in the
presence of P.Ws. 14, 15 and 18. They proved their signatures on the
seizure list. P.W. 18, Sk. Nur Ahmed Khokan, a photographer was
present. He took photographs of the accused lifting the handkerchief.
Two CDs containing the photographs were produced in Court.
17. Body of the victim was sent for post mortem examination. P.W.
22 conducted post mortem over the body. P.W. 22 found continuous
ligature mark around the neck along with other injuries over head and
neck. He deposed death was due to strangulation by ligature, ante
mortem and homicidal in nature.
Arguments at the Bar:-
18. Mr. Mukherjee for Sabina Sabnam @ Rumi argued P.W. 7 is a
wholly unreliable witness. Narration of the incident, as per P.W. 7
bristles with absurdities and improbabilities. P.W. 7 contended he saw
the incident while driving through rear view mirror. This is most
improbable. There was no light inside the vehicle. Though he went to the
petrol pump to refuel the car he did not inform anyone or make any
attempt to run away. According to P.W. 21 (owner of the car), P.W. 7 was
supposed to return by afternoon. Though he did not return till 10:00
p.m. P.W. 21 did not make enquiry. As per prosecution case, incident
occurred at Bardhaman Rathtala but the vehicle was found stranded at
Rasulpur Rail Gate which was barely 5 kilometres away from the
residence of Sabina Sabnam @ Rumi. Telephonic information received at
Palsit Outpost has not been exhibited. Handkerchief was not sent for
forensic examination. Motive of the crime has not been established.
Recovery of the dead body from the vehicle is also shrouded in mystery.
In the inquest report, P.W. 25 noted dead body was found below the
front seat but in the F.I.R. it is claimed body was lying below the middle
seat of the vehicle. Age of the two girls present in the car as per inquest
report was about 10-11 years. Sabnam @ Rumi and Selima Khatun are
in their twenties. P.Ws. 4, 5 and 6 are the local witnesses. They failed to
identify Wahid. Sabnam and Selima were not found at the place of
occurrence. Their identification by P.W. 7 suffers from various
improbabilities. P.W. 22 admitted he was not the registered owner of the
car. Accordingly, he prayed for acquittal.
19. Mr. Chattopadhyay for Selima Khatun adopted the submission
of Mr. Mukherjee. In addition, he submitted there was a delay of ten
days in holding T.I. parade.
20. Mr. Das for Wahid Ali also adopted the submission of Mr.
Mukherjee. In addition, he contended presence of Wahid at the place of
occurrence is most unnatural. It is unlikely a murderer would patiently
wait at the spot to be arrested. He had no motive to commit the crime.
No nexus with co-accuseds has been established. P.Ws. 4 to 6 had not
identified him at the place of occurrence. Recovery of handkerchief is not
proved. P.Ws. 14 and 15 did not depose on the showing of Wahid
handkerchief was recovered. Even, P.W. 19, photographer appears to
have come to the place of occurrence after the recovery. Handkerchief
was not shown to post mortem doctor to prove it could be used as
ligature. He also prayed for acquittal.
21. Mr. Bhattacharya for the State argued P.W. 7 was the driver of
the car. He is the most natural witness. He has withstood extensive
cross-examination. His deposition is corroborated by the presence of
Wahid in the car. He identified co-accused Sabnam and Selima. CDRs
show phone calls were made from mobile phones in the control of the
two female accuseds to the deceased. They had enticed him to come to
Santiniketan and board the vehicle. Thereafter, they murdered him.
When prosecution case is established through the convincing evidence of
eye-witness and other materials on record, failure to prove motive is of
little consequence.
22. Analysis of the evidence on record in the backdrop of the
arguments at the Bar shows prosecution case primarily rests on the
shoulder of P.W. 7, sole eye-witness. Let me see whether he is reliable or
not.
Discussion and findings:-
23. P.W. 7 is the driver of the car. His driving licence was seized
and corroborates his claim. He was told by his employer to take the car
to Reora and meet one Wahid, the hirer. He did so. Thereafter, Sabnam
@ Rumi and Selima boarded the vehicle. They went to Santiniketan. At
Santinikentan, Sabnam and Selima got down from the vehicle. P.W. 7
and Wahid had lunch and rested. In the evening, he proceeded with
Wahid. Sabnam and Selima again boarded with the victim. Thereafter, at
Bardhaman Rathtala he heard a cry. The two women told him victim
suffered from epilepsy and he should continue driving. He was also told
to raise the volume of the tape recorder. P.W. 7 continued to drive. From
the rear view mirror he saw Wahid throttle the victim with handkerchief
while the two women held his hands.
24. It is contended under the aforesaid circumstances and as there
was no light in the car, P.W. 7 could not have seen the incident. I am
unable to agree to such submission. P.W. 7 is an experienced driver. He
was driving down a national highway which is not a deserted road.
Number of vehicles ply down the road with headlights switched on.
Incident occurred at Bardhaman Rathtala which is not a deserted area.
Hence, there was ample ambient light at the place where the incident
occurred. After the incident, P.W. 7 became nervous. He was
apprehensive that the appellants would murder him after disposing the
dead body. He tried to flee away when they went to refuel the car but was
unable to do so. Hence, it cannot be said that P.W. 7 had not attempted
to flee earlier. Finally, when the vehicle stopped at Rasulpur Rail Gate he
left the vehicle on the excuse of buying a cigarette and ran away. The
aforesaid conduct of P.W. 7 cannot be said to be so unnatural to
improbabilise his version in Court.
25. On the other hand, P.W. 7's version is corroborated by other
witnesses. On receipt of telephonic information at Palsit Outpost as well
as Memari Police Station, P.Ws. 1 and 3, police officers attached to Palsit
Outpost went to the place of occurrence. They found Wahid sitting in the
car with the dead body. P.Ws. 4, 5 and 6 are local witnesses. They
deposed a body was found inside the car. A boy was sitting in the car.
They were unable to identify Wahid in Court as they have seen him only
once for a short period. But the owner of the vehicle (P.W. 21) and the
investigating officer (P.W. 25) deposed Wahid was present in the car and
identified him in Court. Presence of Wahid at the place of occurrence is
established. It is contended no explanation is forthcoming why Wahid
did not run away and remained at the spot. From the evidence on record
it appears Wahid in collusion with the female accuseds, namely, Sabnam
and Selima committed the murder. After P.W. 7 had escaped, the female
accuseds also left the spot. It is possible they may have assured Wahid
to remain at the spot and keep watch on the dead body before they
returned with assistance to dispose the same.
26. It is argued no document endorsing receipt of telephonic
information at Palsit Outpost was produced. From the evidence of P.W. 1
it appears though he received telephonic information at the Palsit
Outpost he had not diarized it. On the other hand, the information
received at Memari Police Station was diarized and P.W. 2 produced the
General Diary (Exhibit 4).
27. It is also argued there is lack of clarity where the dead body
was found. On receipt of information, P.Ws. 1 and 3 proceeded to the
spot. They found the body of the victim lying below the middle seat of the
car. This is stated in the F.I.R. lodged by P.W. 1. This corroborates the
manner in which the victim was murdered while sitting on the middle
seat between Sabnam and Selima. It is strenuously argued inquest
report records body was placed below the front seat of the car.
Apparently, this is at variance with the F.I.R. But a deeper scrutiny of
the evidence of the witnesses would show the body had been removed
prior to the holding of inquest. Hence, noting in the inquest report with
regard to the place where the body was found is of little consequence.
28. Counsels for the appellants also argued P.W. 21 is not the
registered owner of the vehicle. During cross-examination, P.W. 21
clarified that the vehicle had been handed over to him by the registered
owner and he had control and dominion over the vehicle at the time of
the incident.
29. Presence of Sabnam and Selima at the place of occurrence is
also proved. P.W. 7 identified them during T.I. parade as well as in
Court. I have gone through the evidence of P.W. 23, the Magistrate who
conducted T.I. parade. He deposed on 22.02.2011 he conducted T.I.
parade. T.I. parade was conducted within ten days of arrest of the two
female accuseds. All safeguards had been taken during T.I. parade. The
said appellants had been in the vehicle throughout the day. P.W. 7 had
ample opportunity to see them. Hence, their identification during T.I.
parade and in Court is most probable. This proves their presence and
participation in the crime beyond doubt.
30. Role of the female appellants in the incident is further fortified
through the evidence of P.Ws. 10 and 12, wife and brother of the
deceased. The witnesses stated one of the female appellants, i.e.,
Sabnam had intimate relationship with the deceased. In the morning of
10.02.2011, deceased left his residence telling a lie. He claimed he was
going to Calcutta for medical treatment. But he went to Santiniketan to
meet Sabnam and Selima. CDRs (Exhibit 25) show telephonic exchanges
between the mobile number of the deceased, i.e., 9732620125 and
Sabnam, i.e., 83483224345 which was in possession of Selima Khatun.
Soon after the incident, Sabnam and Selima were found together and
were arrested by P.W. 25. These circumstances corroborate P.W. 7 with
regard to the role of Sabnam and Selima in the murder.
31. P.W. 22, post mortem doctor deposed victim suffered death due
to strangulation. He found ligature mark around the neck. He deposed
victim died due to throttling.
32. It is argued though Sabnam and Selima held the hands of the
victim but no injuries were found on the hands. Victim was known to
Sabnam. He had an intimate relationship with her. He had been lured
into the trap by the said appellant. Owing to his close and intimate
relationship with one of the appellants, victim was caught unaware when
the female appellants held his hand and Wahid suddenly throttled him.
As a mark of resistance he may have writhed his head from one side to
another causing head injuries. Injuries noted on the deceased as well as
the cause of death are consistent with the ocular evidence of P.W. 7.
Medical evidence wholly corroborates the eye-witness P.W. 7 and proves
the case beyond doubt.
33. In this backdrop, failure to prove motive or credibility of the
recovery of the ligature does not dent the authenticity and integrity of the
prosecution case.
Conclusion:-
34. In the light of the aforesaid discussion, I uphold the conviction
and sentence of the appellants.
35. Bail bonds of the Sabina Sabnam @ Rumi are cancelled and
she is directed to forthwith surrender and serve out the reminder of the
sentence, failing which the trial Court shall issue appropriate processes
for execution of the sentence in accordance with law.
36. Period of detention suffered by the appellants during
investigation, enquiry and trial shall be set off from the substantive
sentence imposed upon them in terms of section 428 of the Code of
Criminal Procedure.
37. The appeals are, accordingly, dismissed.
38. In view of dismissal of the appeals, connected applications, if
any, also stand disposed of.
39. Lower court records along with copies of this judgment be sent
down at once to the learned trial Court as well as the Superintendent of
Correctional Home for necessary compliance.
40. Photostat certified copy of this judgment, if applied for, be given
to the parties on priority basis on compliance of all formalities.
I agree.
(Ajay Kumar Gupta, J.) (Joymalya Bagchi, J.)
PA (Sohel)
