Calcutta High Court (Appellete Side)

Ziaul Haque vs The State Of West Bengal on 18 August, 2023

IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
Present:-
HON'BLE JUSTICE CHITTA RANJAN DASH.
AND
HON'BLE JUSTICE PARTHA SARATHI SEN.

CRA 184 of 2007
With
CRAN 2 of 2012( Old CRAN 503 of 2012)
With
CRAN 4 of 2022

Ziaul Haque
Versus.
The State of West Bengal

For the Appellant : Mr. Somopriyo Chowdhury, Adv,
Mr. Saikat Debnath, Adv.
For the State : Mr. Prasun Kumar Dutta, Ld. APP,
Md. Kutubuddin, Adv.,
Mr. Santanu Deb Roy, Adv.

Last Heard on : 26.07.2023
Judgment on : 18.08.2023

PARTHA SARATHI SEN, J. : -

1. In this appeal the judgement of conviction dated 02.12.2006 and the

order of sentence dated 04.12.2006, as passed by the Learned Additional

District and Sessions Judge, 3rd Fast Track Court, Bichar Bhavan, Calcutta,

in connection with Sessions Trial No.1 of January, 2003 arising out of

Sessions Case no. 58 of 2002 has been impugned. By the impugned

judgement learned trial court found the appellant guilty under Section 302

IPC and thus convicted and sentenced him to suffer R.I for life and to pay
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fine of Rs. 5000/- i.d. to suffer further R.I for one year. The convict of the

said trial felt aggrieved and thus preferred the instant appeal.

2. For effective disposal of the instant appeal the facts leading to

initiation of the aforesaid sessions trial is required to be discussed in a

nutshell.

3. One Ibrar Chowdhury @ Tinku of 6/14 Nilmani Halder Lane, Kolkata-

700013 gave a statement on 16.01.2002 to one Partha Sarathi Mukherjee

(PW15), S.I of Taltala Police Station to the effect that his father Farookh

Chowdhury is the owner of a hotel namely 'Sanjar Guest House' at 6/25

Nilmani Halder Lane and the said hotel was a three storyed building having

20 rooms therein; nine rooms on the first floor and eleven rooms on the

second floor. It was the further version of the informant that on the said day

at about 4:30 p.m one Md. Idris (PW5) who was a room service boy of the

said hotel rushed to him from the second floor when the informant was

sitting in the ground floor at the reception of the said hotel and informed in

a tensed condition that he (Md. Idris-PW5) had heard an alarm of a person

as well as sound of scuffle from room no.202 on the second floor. It has

been stated further by the informant that immediately thereafter the

informant, the said Idris and another room service boy, Benajir (PW4)

rushed to room no.202 on the second floor and noticed that the door of the

said room was closed. It was his further version that thereafter they pushed

the door and it was opened then and then and at that time they noticed that

one of the boarders of the said room viz; Ziaul Haque was sitting on the cot

of the said room with a blood smeared knife and another boarder namely;

Rafiqul Haque was lying on the floor of the said room in a pool of blood. It
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was his further version that immediately thereafter seeing the informant and

the other two room service boys the said boarder, Ziaul Haque threw the

knife on the floor and said that he had murdered his younger brother and

thereafter he (the assailant) made an attempt to flee away from the said

room. The informant pushed him inside the room and locked the door from

outside by hatch bolt and thereafter after coming to downstairs, informed

Taltala Police Station regarding the said incident.

4. In his version the informant stated further that both the

aforementioned boarders checked into his hotel at 5 a.m on 16.01.2002 in

room no.202 and at that time they wrote their address as residents of

Ranaghat. It was his further version that after 20 minutes the police arrived

at the P.O and when he again entered the said room no.202 with the police

he noticed that the victim Rafiqul was lying in a dead condition while the

other boarder i.e. the appellant herein was sitting at the corner of the bed.

5. PW15 reduced the statements of the informant in writing and got it

signed by him and thereafter started Taltala P.S Case no. 24 of 2002 dated

16.01.2002 under Section 302 IPC against the accused Ziaul Haque.

Investigation was taken up and on completion of the same charge sheet was

submitted under Section 302 IPC against the accused.

6. Trial Court Record reveals that the present appellant was explained of

the charge under Section 302 IPC against him, which he denied and claimed

to undergo trial. The prosecution before the learned trial court examined 15

witnesses in all and they have exhibited various documents and materials.

Before the learned trial court the defence has also adduced evidence of one

witness. From the trend of cross-examination of the prosecution witnesses,
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the evidence adduced by DW 1 and the answers as given by the accused in

his examination under Section 313 Cr.P.C it reveals that the defence case is

based on clear denial and false implication.

7. The prosecution witnesses before the learned trial court can be

categorized in the following manner:-

Private individuals Government officials Police personnels
PW2- Son of the PW12- Autopsy PW1- Police
owner of the guest surgeon. photographer.
house and the
informant.
PW4- An employee of PW13- Assistant PW3- Plan maker of
the guest house. Director, FSL. police department.
PW5- An employee of PW8- S.I of Police of
the guest house. Taltala P.S.
PW6- An employee of PW14- Inspector of
the guest house police and hand
(seizure witness). writing expert.
PW7- An employee of PW15- R.O+I.O
the guest house
(seizure witness).
PW9- Wife of the
deceased.
PW10- Father-in-law
of the deceased.
PW11-mother-in-law
of the deceased.

8. In course of his argument Mr. Chowdhury, learned advocate for the

appellant at the very outset draws attention of this Court to the evidence of

PW2, PW4 and PW5. It is contended by him that learned trial court

committed serious error of fact as well as of law in holding that the evidence

of the three prosecution witnesses are consistent and the learned trial court

has miserably failed to appreciate the contradictions as available in their

evidences especially in their respective cross-examinations. It is further
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argued that since before the learned trial court the check-in and check-out

appellant in the alleged P.O room has become doubtful which the learned

trial court has failed to visualize. It is also argued that though in course of

investigation the alleged weapon of offence was seized but subsequently in

course of evidence of the prosecution witnesses it reveals that the finger

print of the appellant did not match with the finger prints available in the

seized weapon. Mr. Chowdhury, further submits that for the sake of

argument, though not admitted, even if this court finds that the present

appellant is found guilty, his sentence may be altered either under Part I or

Part II of Section 304 IPC and considering the long detention of the present

appellant, the present appellant be released invoking the provision of

Section 57 IPC. In course of his argument Mr. Chowdhury, learned advocate

for the appellant placed his reliance upon the reported decision of K. Ravi

Kumar vs. State of Karnataka reported in (2015) 2 SCC 638.

9. Per contra, Mr. Prasun Kumar Dutta, Learned Additional P.P for the

State submitted before this Court that the learned trial court is very much

justified in passing the impugned judgement. It is further argued by him

that before the learned trial court all the circumstances as available against

the present appellant have been proved beyond reasonable doubt which

unerringly point out to the guilt of the present appellant without any

shadow of doubt. It is thus submitted on behalf of the State that the present

appeal may be dismissed.

10. The factual matrix in which the appellant came to be prosecuted and

convicted has been set out in detail by the trial court in the impugned
6
judgement. Therefore, we need not recapitulate the same all over again

except to the extent it is necessary to do so for the disposal of the instant

appeal.

11. Admittedly, the instant case is based on circumstantial evidence. At

this juncture we propose to peruse the evidence of PW12 who was at that

material time was an Associate Professor, Department of Forensic and State

Medicine, Calcutta Medical College and in that capacity he performed the

post mortem examination over the dead body of the deceased. The relevant

portion of the testimony of PW 12 is as under:-

".............................................................................................
During examination I found that there were some injuries over the
dead body.
Injury No.1 : Incised punctured wound, 1"X3"X Thoracic cavity,
front of lower part of chest, "above coastal arch.
Injury No.2: Above right heel there was injury, ½" to the right.
Injury No.2: One incised penetrating wound 1.3" X .4" X Thoracic
Cavity pressed obliquely over lower part of front of left side chest.
Injury 3: One incised penetrating wound 1" X 3" abdominal cavity
pressed over the upper part of left side of abdomen.
Injury 4: One incised penetrating wound 1.5" X .5" X abdominal
Cavity with Protrusion of coils of small Intestine through the
wound.
Injury 5: One incised wound, 1.2" X .4" X Muscle pressed over
outer aspect of lower 1/3" of right thigh.
Injury 6: One incised wound, 4" X 3" X Muscle pressed over the
front of left elbow and adjoining part of lower part of left arm.
Injury No.7: One incised wound .6" X .2" X Muscle and ternders
over back of left thumb.
Injury no.8: Multiple nail scratch abrasion sizes varying between
.3" X .2".
All the injuries showed evidence of vital reactions.
The case of death was due to the effect of injuries, as noted
above which was anti mortem and homicidal in nature."
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It is pertinent to note that the cross-examination of PW12 has

been declined.

In view of such clinching evidence as adduced by PW12 we have

no hesitation to hold that the learned trial court is absolutely justified

in holding that the death of the deceased Rafiqul was homicidal in

nature.

12. On comparative study of the testimonies of PW2 (the informant),

PW4, PW5 and PW6 (all room service boys/employees of the said guest

house) it is evident that on the fateful day both the deceased and his elder

brother, who is the appellant before us checked into room no.202 of the said

hotel together in the morning. Such fact has been admitted by the appellant

in his examination under Section 313 Cr.P.C.

13. It further appears to us that the case of the prosecution is that at the

time of alleged occurrence of the incident the deceased and the appellant

were present together in the P.O room gets due support from the evidence of

PW2, PW4 and PW5 since all the three aforesaid prosecution witnesses have

adduced coherent evidence to the effect that on the said day at about 4:30

p.m PW5 heard a hue and cry from the said room and when he reported

such incident to PW2 who at that time was sitting in the reception room

with PW4, then PW2, PW4 and PW5 together rushed to the P.O room i.e.

room no.202 on the second floor and on opening the door of the said room

by a push, they found the deceased was lying on the floor in a pool of blood

while the present appellant was sitting on a cot with a knife in his hand. We

have minutely gone through the cross-examinations of PW2, PW4 and PW5

but we are unable to detect any contradiction to establish that the accused
8
was not present at the P.O room when the alleged incident occurred and

therefore the plea of alibi as taken by the present appellant in his

examination under Section 313 Cr.P.C, in our considered view, cannot

stand.

14. In our considered view another salient feature as involved in this

appeal is the alleged extrajudicial confession as made by the appellant

before PW2, PW4 and PW5 immediately after the occurrence of the incident

when he was sitting in room no.202 on the second floor of the said guest

house. At this juncture if we look to evidence of informant (PW 2 herein) we

find that PW1 testified thus:-

"......................................................................................................
Soon I, Idris and Benazir rushed to the room no.202 of the second floor.
We pushed open the door of that room and we saw Ziaul Haque, one of
our boarder was sitting on the bed with blood stained knife in his hand
and he was telling that he had killed his brother Rafiqul Islam who was
also one of the boarder of our guest house. We also saw that Rafiqul
Islam was lying on the floor in a pool of blood all over the body."

15. We have also scrutinized the cross-examination of PW 2 and found

that PW2 could not be shaken in this regard in any way. It further appears

to us that in their respective depositions PW4 and PW5 had also testified in

the same line as testified by PW2 with regard to the alleged extra judicial

confession of the appellant.

16. Learned advocate for the appellant was vehement in his argument

with regard to the acceptability of the said alleged extra judicial confession

on the part of the learned trial court. In this regard we propose to rely upon

the reported decision of Md. Azad @ Samin vs. State of West Bengal
9
reported in 2008 (11) JT 658 wherein the Hon'ble Apex Court expressed

the following view:-

"An extrajudicial confession, if voluntary and true and made in a
fit state of mind, can be relied upon by the court.....It is not open
to the Court to start with a presumption that extra judicial
confession is a weak type of evidence ....such a confession can
be relied upon and conviction can be founded thereon if the
evidence about the confession comes from the mouth of the
witnesses who appear to be unbiased, not even remotely inimical
to the accused and in respect of whom nothing is brought out
which may tend to indicate that he may have a motive of
attributing an untruthful statement to the accused ."

The same view was taken in the reported decision of Siva

Kumar vs. State by Inspector of Police reported in AIR 2006

(SC) 653: 2006 (1) SCC 714.

17. Keeping in mind the propositions of law as discussed in the

aforementioned two decisions if we consider the testimonies of PW2, PW4

and PW5 we find that there is least possibility on the part of PW2, PW4 and

PW5 to implicate the present appellant unnecessarily with the alleged

offence since the said three prosecution witnesses in considered view of us

are independent, unbiased and remotely inimical to the accused. In view of

such, we thus find little justification in accepting the argument of the

learned advocate for the present appellant that the learned trial court is not

justified in placing his reliance upon the extra judicial confession as made

by the present appellant in presence of PW2, PW4 and PW5.

18. There is no doubt in our mind that since before the learned trial court

from the evidence of PW12 it has been established beyond reasonable doubt

that the cause of death of the deceased is homicidal in nature and since
10
before the learned trial court it has been proved beyond the shadow of

reasonable doubt from the evidence of PW2, PW4 and PW5 that at the time

of the occurrence of the alleged incident the present appellant was found to

be in the company of the deceased in a closed door room i.e. room no.202 of

the said guest house, burden lies upon the present appellant under Section

106 of the Evidence Act as to how the incident occurred since the same is

evidently within the special knowledge of the present appellant. It appears to

us that inspite of thorough cross-examination of the prosecution witnesses

and inspite of adducing evidence by DW1, the appellant has failed to

discharge such burden and therefore learned trial court is very much

justified in drawing the adverse presumption of guilt against the present

accused.

19. In course of his argument learned advocate for the respondent was

also very vocal with regard to the failure on the part of the prosecution to

prove the motive since according to him such motive is considered to be a

strong link to complete the entire chain of circumstances to prove the guilt

of the present appellant. At this juncture we propose to look to the evidence

of PW9 being the wife of the deceased, PW10 and PW11 being the parents-

in-law of the deceased. From the evidence of PW9 it appears to us that

initially the marriage between Rafiqul, since deceased and his wife (PW9)

was not accepted by the family members of Rafiqul, including the present

appellant who is his elder brother and thus after marriage when Rafiqul,

since deceased took PW9 to his house, at that time the present appellant

and his mother resisted them in entering into the matrimonial home of PW9

and she was threatened by Ziaul (the appellant herein) if she made an

endeavour to enter their house. She further testified that subsequently her

parents had to pay Rs.25,000/- and thereafter she was allowed to enter into

her matrimonial home and even during her stay in her matrimonial home

both she and Rafiqul, her husband, since deceased were threatened by the

present appellant that they would be killed by him. On thorough scrutiny we

find from the cross-examination of PW9 that she repeated her version in

such cross-examination though she admitted that neither she nor her

deceased husband had ever reported the incident of such threat to the

police. PW10 and PW11 being the parents of PW9 in their respective

examination-in-chiefs also stated about such threat. On perusal of the

evidence of PW9, PW10 and PW11 it thus appears to us that those three

witnesses in their respective examination-in-chiefs were found to be

consistent with regard to the alleged threat by the present appellant to the

deceased and his wife though they never reported the said incident to the

police at any point of time.

20. The relevance of motive in a case based on circumstantial evidence

has been dealt with on a number of occasions by the Hon'ble Supreme Court

and in one such case Ganesh Lal vs. State of Maharashtra reported in

(1992) 3 SCC 106 the Hon'ble Apex Court expressed the following view:-

" Even in a case of circumstantial evidence absence of motive which may be one of the strong link to complete the chain would not necessarily become fatal to the prosecution where other circumstances are such as to complete the chain connecting the accused with the crime."

21. The same view was taken by the Hon'ble Apex Court in the reported

decision of Md. Mustafa Sk. vs. State of West Bengal reported in (2011) 2

CHN 990 and Vivek Kalra vs. State of Rajasthan reported in (2013) 2

CCrLR (SC) 826.

22. In view of the propositions of law as discussed in the aforesaid three

reported decisions it thus appears to this Court that the presence of motive

is not a sine-qua-non in a case based on circumstantial evidence provided

there are circumstances which are sufficient enough to complete the chain

connecting the accused with the crime.

23. Another glaring feature of the case before us is as to what prompted

the present appellant to write a wrong address at the hotel register since in

course of investigation it was found that both the appellant and the

deceased are residents of Village Rampur under P.S Ratua in District Malda

and not of Sagun Bagan, Ranaghat, Quarter no.4/C , District Nadia. In this

regard we find no explanation on the part of the appellant in the answers as

given by him in the examination under Section 313 Cr.P.C.

24. In view of the discussion made hereinabove we thus find that before

the learned trial court the prosecution is successful in establishing five

golden principles of circumstantial evidence namely; (as held in the reported

decision of State of Rajasthan vs. Raja Ram reported in (2003) 8 SCC

180 and Sarad Birdhichand Sarda vs. State of Maharashtra reported

in AIR 1984 SC 1622):-

"i. The circumstances from which the conclusion of guilt is to be drawn should be fully established;

ii. The facts so established should be consistent only 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; iii. The circumstances should be of a conclusive nature and tendency; iv. There should be every possible hypothesis except the one to be proved.

v. There must be 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."

25. In view of the discussion as made hereinabove we are convinced that

the prosecution before the learned trial court is successful in proving the

chain of evidence in a complete manner as against the present appellant and

therefore the learned trial court is absolutely justified in finding that it is

none but the appellant who has caused the death of the deceased.

26. Since in course of his argument learned advocate for the appellant

argued that the learned trial court is also not justified in convicting the

present appellant under Section 302 IPC and on the contrary though not

admitted, even if the appellant is found guilty he ought to be convicted

either under Part I or Part II of Section 304 IPC we propose to look to the

reported decision of State of Andhra Pradesh vs. Rayavararapu Punnya

And Anr. reported in (1976) 4 SCC 382 wherein the Hon'ble Supreme

Court duly considered the distinction of applicability of culpable homicide

and murder in the following manner:-

""12. In the scheme of the Penal Code, "culpable homicide" is genus and "murder" its specie. All "murder" is "culpable homicide" but not vice-versa. Speaking generally, "culpable homicide" sans "special characteristics of murder", is "culpable homicide not amounting to murder". For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degrees of culpable homicide. The first is, what may be called, "culpable homicide of the first degree". This is the greatest form of culpable homicide, which is defined in Section 300 as "murder". The second may be termed as "culpable homicide of the second degree". This is punishable under the first part of Section 304. Then, there is "culpable homicide of the third degree". This is the lowest

type of culpable homicide and the punishment provided for it is, also, the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304.

13. The academic distinction between "murder" and "culpable homicide not amounting to murder" has vexed the courts for more than a century. The confusion is caused, if courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minutae abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Sections 299 and 300. The following comparative table will be helpful in appreciating the points of distinction between the two offences.

14. Clause (b) of Section 299 corresponds with clauses (2) and (3) of Section 300. The distinguishing feature of the mens rea requisite under clause (2) is the knowledge possessed by the offender regarding the particular victim being in such a peculiar condition or state of health that the internal harm caused to him is likely to be fatal, notwithstanding the fact that such harm would not in the ordinary way of nature be sufficient to cause death of a person in normal health or condition. It is noteworthy that the "intention to cause death" is not an essential requirement of clause (2). Only the intention of causing the bodily injury coupled with the offender's knowledge of the likelihood of such injury causing the death of the particular victim, is sufficient to bring the killing within the ambit of this clause. This aspect of clause (2) is borne out by Illustration (b) appended to Section 300.

     Section 299                               Section 300

A    person commits               Subject to certain exceptions culpable
culpable homicide if              homicide is murder if the act by which the
the act by which the              death is caused is done --
death is caused is
done --

                                  INTENTION

(a) With the intention (1) With the intention of causing death; or

of causing death;

(b) With the intention (2) With the intention of causing such bodily injury of causing such as the offender knows to be likely to cause the bodily injury as death of the person to whom the harm is is likely to cause caused; or death; or

(3) With the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death; or

KNOWLEDGE

(c) With the (4) With the knowledge that the act is knowledge that so imminently dangerous that it must in all the act is likely to probability cause death or such bodily injury as cause death is likely to cause death, and without any excuse for incurring the risk of causing death or such injury as is mentioned above.

15. Clause (b) of Section 299 does not postulate any such knowledge on the part of the offender. Instances of cases falling under clause (2) of Section 300 can be where the assailant causes death by a fist blow intentionally given knowing that the victim is suffering from an enlarged liver, or enlarged spleen or diseased heart and such blow is likely to cause death of that particular person as a result of the rupture of the liver, or spleen or the failure of the heart, as the case may be. If the assailant had no such knowledge about the disease or special frailty of the victim, nor an intention to cause death or bodily injury sufficient in the ordinary course of nature to cause death, the offence will not be murder, even if the injury which caused the death, was intentionally given.

16. In clause (3) of Section 300, instead of the words "likely to cause death" occurring in the corresponding clause (b) of Section

299, the words "sufficient in the ordinary course of nature" have been used. Obviously, the distinction lies between a bodily injury likely to cause death and a bodily injury sufficient in the ordinary course of nature to cause death. The distinction is fine but real, and, if overlooked, may result in miscarriage of justice. The difference between clause (b) of Section 299 and clause (3) of Section 300 is one of the degree of probability of death resulting from the intended bodily injury. To put it more broadly, it is the degree of probability of death which determines whether a culpable homicide is of the gravest, medium or the lowest degree. The word "likely" in clause (b) of Section 299 conveys the sense of "probable" as distinguished from a mere possibility. The words "bodily injury ... sufficient in the ordinary course of nature to cause death" mean that death will be the "most probable" result of the injury, having regard to the ordinary course of nature.

17. For cases to fall within clause (3), it is not necessary that the offender intended to cause death, so long as the death ensues from the intentional bodily injury or injuries sufficient to cause death in the ordinary course of nature. Rajwant v. State of Kerala [AIR 1966 SC 1874 : 1966 Supp SCR 230 : 1966 Cri LJ 1509.] is an apt illustration of this point.

18. In Virsa Singh v. State of Punjab [AIR 1958 SC 465 : 1958 SCR 1495 : 1958 Cri LJ 818.] Vivian Bose, J. speaking for this Court, explained the meaning and scope of clause (3), thus (at p. 1500):

"The prosecution must prove the following facts before it can bring a case under Section 300, 'thirdly'. First, it must establish quite objectively, that a bodily injury is present; secondly the nature of the injury must be proved. These are purely objective investigations. It must be proved that there was an intention to inflict that particular injury, that is to say, that it was not accidental or unintentional or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further, and fourthly it must be proved that the injury of the type just described made up of the three elements set out above was sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender."

19. Thus according to the rule laid down in Virsa Singh case of even if the intention of accused was limited to the infliction of a bodily injury sufficient to cause death in the ordinary course of nature, and did not extend to the intention of causing death, the offence would be "murder". Illustration (c) appended to Section 300 clearly brings out this point."

27. Keeping in mind the proposition of law as discussed in the reported

decision of State of A.P vs. Rayavararapu Punnya and Anr. (supra) if we

once again look to the evidence of PW12 we find several (at least 6) incised

penetrating wounds on the vital part of the person of the deceased and that

is why PW12 categorically stated that the injures showed evidence of vital

reaction and the cause of death was due to the effect of injuries which are

ante mortem and homicidal in nature. Admittedly in the case in hand the

bodily injuries of the deceased both in the vital and non vital organs have

been proved which indicates the scuffling between the appellant and the

deceased prior to his death as testified by PW5. The prosecution has also

proved the nature of such injuries and from the analysis of evidence as

adduced by the relevant prosecution witnesses, in our considered view

under no stretch of imagination it can be said that such injuries occurred on

account of accident or due to unintentional activity of the present appellant

and therefore it can be safely presumed that the present appellant has every

intention of causing such bodily injury and that such bodily injuries have

been intended to be inflicted are sufficient in the ordinary course of nature

to cause death of the deceased.

28. In view of the discussion made hereinabove we have thus no

hesitation to hold that the present appellant is not entitled to get the order

of sentence either under Part I or Part II of Section 304 IPC and thus learned

trial court is absolutely justified in convicting the present appellant under

Section 302 IPC.

29. In course of his submission learned advocate for the appellant

submits before this court that considering the fact that the present

appellant is suffering incarceration for more than 21 years, the present

appellant may be released from judicial custody in view of the provisions of

Section 57 IPC since according to Section 57 IPC imprisonment for life is

equivalent to imprisonment for 20 years.

30. In order to answer the issue as raised by the learned advocate for the

appellant we propose to look to the provision of Section 57 IPC and the same

reads as under:-

"Section 57 of The Indian Penal Code-

57. Fractions of terms of punishment.--In calculating fractions of terms of punishment, imprisonment for life shall be reckoned as equivalent to imprisonment for twenty years."

31. We also propose to look to the reported decision of Ashok Kumar @

Golu vs. Union of India and Ors. reported in (1991) 3 SCC 498 where the

Hon'ble Apex Court while interpreting Section 57 IPC expressed the

following view:-

"12. Counsel for the petitioner next submitted that after this court's decision in Bhagirath's case permitting the benefit of set off under section 428 in respect of the detention period as an under trial, the ratio of the decision in Godse's case must be taken as impliedly disapproved. We see no basis for this submission. In Godse's case the convict who was sentenced to transportation for life had earned remission for 2963 days during his internment. He claimed that in view of section 57 read

with section 53A, IPC, the total period of his incarceration could not exceed 20 years which he had completed, inclusive of remission, and, therefore, his continued detention was illegal. Section 57, IPC reads as follows:

"57. Fractions of terms of punishment-In calculating fractions of terms of punishment, imprisonment for life shall be reckoned as equivalent to imprisonment for twenty years." The expression `imprisonment for life' must be read in the context of section 45, IPC. Under that provision the word `life' denotes the life of a human being unless the contrary appears from the context. We have seen that the punishments are set out in section 53, imprisonment for life being one of them. Read in the light of section 45 it would ordinarily mean imprisonment for the full or complete span of life. Does section 57 convey to the contrary? Dealing with this contention based on the language of section 57, this Court observed in Godse's case at pages 444-45 as under:

"Section 57 of the Indian Penal Code has no real bearing on the question raised before us. For calculating fractions of terms of punishment the section provides that transportation for life shall be regarded as equivalent to imprisonment for twenty years. It does not say that transportation for life shall be deemed to be transportation for twenty years for all purposes; nor does the amended section which substitutes the words "imprisonment for life" for "transportation for life" enable the drawing of any such all embracing fiction. A sentence of transportation for life or imprisonment for life must prima facie be treated as transportation or imprisonment for the whole of the remaining period of the convicted person's natural life."

This interpretation of section 57 gets strengthened if we refer to sections 65, 116, 120 and 511, of the Indian Penal Code which fix the term of imprisonment there under as a

fraction of the maximum fixed for the principal offence. It is for the purpose of working out this fraction that it became necessary to provide that imprisonment for life shall be reckoned as equivalent to imprisonment for 20 years. If such a provision had not been made it would have been impossible to work out the fraction of an in-definite term. In order to work out the fraction of terms of punishment provided in sections such as those enumerated above, it was imperative to lay down the equivalent term for life imprisonment."

32. The duration of life sentence within the meaning of IPC has also been

considered in the reported decision of Duryodhan Routh vs. State of

Orissa reported in (2015) 2 SCC 783 wherein the Hon'ble Apex Court held

thus:-

"28. From the aforesaid decisions rendered by this Court, it is clear that a sentence of imprisonment for life means a sentence for the entire life of the prisoner unless the appropriate Government chooses to exercise its discretion to remit either the whole or a part of the sentence under the provisions of the Criminal Procedure Code."

33. In view of such we are unable to accept the contention of the learned

advocate for the appellant for releasing the present appellant from his

incarceration on account of his detention for more than 21 years.

34. As a result the present appeal being CRA 184 of 2007 fails and is

dismissed. Consequently, the judgement of conviction dated 02.12.2006 and

the order of sentence dated 04.12.2006, as passed by the Learned Additional

District and Sessions Judge, 3rd Fast Track Court, Bichar Bhavan, Calcutta,

in connection with Sessions Trial No.1 of January, 2003 arising out of

Sessions Case no. 58 of 2002 is hereby affirmed.

35. However, considering the long detention of the present appellant we

direct the department to forward a copy of this judgement to the Additional

Chief Secretary, Home Department, Government of West Bengal, Nabanna,