The State Of West Bengal vs Pranab Roy
2023 Latest Caselaw 866 Cal

                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

                    Death Reference No. 3 of 2018


THE STATE OF WEST BENGAL                                ...APPELLANT

                                 Vs.

PRANAB ROY                                            ...RESPONDENT

                                With

                         C.R.A. 177 of 2018

PRANAB ROY                                              ...APPELLANT

                                 Vs.
THE STATE OF WEST BENGAL                              ...RESPONDENT




For the Appellant             : Mr. Sekhar Kumar. Basu, Sr. Adv.
                                Mr. Sujan Chatterjee, Adv.
                                Mr. Sanat Kumar Das, Adv.
For the State                 : Mr. S.G. Mukherjee, ld. PP.
                                Mr. N. Ahmed, ld. APP.
                                Mr. P.P. Das, Adv.

Heard on                      : 12.12.2022, 20.12.2022,
                                09.01.2023 and 11.01.2023

Judgment on                   : 02.02.2023
                                               2




Joymalya Bagchi, J.:-

1.            This appeal is directed against the judgment and order dated

18.04.2018 and 19.04.2018 passed by learned Additional District &

Sessions Judge, 2nd Court, Tamluk, Purba Medinipur in Sessions Trial

No. 5(7)15 arising out of Sessions Case no. 434(Nov.)14 convicting the

appellant for commission of offences punishable under sections

376A/302 IPC and section 14(1) of Child Labour (Protection) Act [sic] 1

and sentencing him to death subject to the confirmation by this Court.

2.            The appeal and the Death reference have been heard

analogously and have been disposed of by this judgment and order.

Prosecution case:-

3.            Victim was a 12-year old girl. One month prior to the incident

she was employed in the house of the appellant as a full time domestic

help. On 23.05.2012 at about 1:00 pm her father P.W. 1 got

information the victim had been admitted at Tamluk District Hospital.

He rushed to the hospital and saw his daughter writhing in pain. She

was unable to speak but pointed to her chest. Appellant was present at

the spot. He disclosed the victim had consumed poison. He also

assured P.W. 1 and his wife that she was stable and if necessary would

be shifted to Calcutta for better treatment. Unfortunately, the victim

died.




1
    Child Labour (Prohibition and Regulation) Act, 1986 (for short, 'Act of 1986')
                                      3




4.          Appellant sympathized with P.W. 1 and told him that he

would   arrange    for   cremation   and   shradh   ceremony    and   take

responsibility of other daughters on condition that P.W. 1 remained

silent. Thereafter, with the help of local councilor the body of the victim

was released.

5.          When police came to the spot P.W. 1 told them there was

conspiracy behind the death of his daughter as she had been taken to

hospital at 10 AM but he was informed after three hours i.e. around

1:00 PM. During cremation his wife noticed injuries on the private part

of their daughter. This raised suspicion in his mind that the victim had

not died by consuming poison but due to some indecent behavior.

Initially, he was unable to react due to his mental distress.

6.          On the next day, appellant and his associates threatened him

not to go to police. 7-8 days later he was taken to the residence of one

Golam Sarwar. There he was asked to put LTI on a document stating

that he would not file any case against the appellant in lieu of money.

He refused to do so. Police came to the spot. He was taken to police

station where he lodged complaint which was scribed by one Basudeb

Das (P.W. 2). Appellant was also brought to the police station and

arrested.

7.          In the course of investigation his statement was recorded.

Post mortem report of the victim showed she had been subjected to

rape and throttled to death. Charge-sheet was filed.
                                     4




8.        At the time of consideration of charge defence prayed the

viscera report be called for. Viscera report was produced. Upon

consideration of the materials on record, charges were framed under

section 376A and 302 IPC and under section 14(1) of 'Act of 1986'.

9.        Appellant pleaded not guilty and claimed to be tried.

10.       In the course of trial, prosecution examined seven witnesses

including P.W. 1, father of the victim.

11.       In conclusion of trial, the trial Judge vide judgment and order

dated 18.04.2018 and 19.04.2018 convicted and sentenced the

appellant, to death. Hence, the present appeal and death reference.

Arguments at the Bar:-

12.       Mr. Basu, learned Senior Counsel submitted the charges are

inconsistent and defective. Dates of occurrence in the heads of charges

are not consistent to one another. P.W. 1 is not a reliable witness. He

admitted he had not visited the house of the appellant. He is not a

competent witness with regard to the victim staying in the house of the

appellant as a full time domestic help. His knowledge with regard to

the injuries in the private parts of his daughter is derived from his wife

who has not been examined. P.W. 1 has criminal antecedents and was

arrested in connection with another case. Reason for delay in lodging

FIR given by P.W.1 in Court is inconsistent with his statement before

Magistrate. It is unclear why he did not take help of his neighbors with

whom he had good relations to lodge FIR. None of the doctors who had
                                    5




examined the victim at the Tamluk District Hospital found signs of

sexual assault. P.W. 3 had noted in the injury report 'patient shows

sign of poison'. He could not explain when he had struck off the

aforesaid statement. P.W. 4 did not find any sign of blood in the private

part. P.W. 4 disclosed to police neither the girl nor any other patient

party complained of rape. The girl had mentioned the word 'poison' and

pointed upstairs. These circumstances militate against the prosecution

case. Age of the girl has not been conclusively proved. Opinion of post

mortem doctor (P.W. 5) regarding age of the victim on the basis of teeth

is not a conclusive one. There is inordinate delay of about three

months in making the post mortem report. This unexplained delay

casts a shadow and renders it hazardous to rely on the doctor's

opinion. There is no evidence where the viscera was kept prior to

examination. There are glaring defects or deficiencies in investigation.

Vital witnesses, namely, mother of the deceased, doctor at RRB

nursing home where the victim was first treated, Satya Kinkar Das

(employee of BSNL), Biswajit Manna, Tapan Sarkar, Saroj Kumar

Biswas were not examined. Hence, prosecution case has not been

proved beyond doubt.

13.      In response, learned Public Prosecutor submitted victim was

a minor girl coming from economically weak strata of society. She was

employed as a full time domestic help in the house of the appellant.

Appellant was the lone male member living in the house. P.W. 1, being
                                    6




the father of the minor girl, was aware of her employment and had

consented to it. While staying at the appellant's residence, victim was

raped and throttled to death. This is probabilised by the fact that the

appellant took the victim to hospital. However, to cover his misdeeds

he gave a false explanation that the victim had tried to consume

poison. P.Ws. 3 and 4, doctors at Tamluk District Hospital relied on

the appellant's version and treated the victim perfunctorily. While P.W.

3 did not examine her private parts, P.W. 4 claimed to have done so

but over her wearing apparels. Their opinion with regard to the nature

of injuries suffered by the victim is of little consequence. Even version

of P.W. 4 that the victim did not complain of rape or had uttered the

word 'poison' is not supported by other witnesses. P.W. 5 post mortem

doctor categorically stated that the minor victim with the noted injuries

could not have spoken. P.W. 1 father of the victim also claimed victim

was unable to speak. Injuries noted in the post mortem report clearly

shows victim had been raped and throttled to death. Viscera report

rules out any possibility of poison. Age of the victim is proved through

the evidence of her father, P.W. 1. Even the appellant disclosed her age

as 12 years when the victim was admitted at Tamluk District Hospital

as per Exhibit 2. Appellant gave false explanation with regard to the

circumstances in which he had brought the victim as well as the cause

of her death. This strengthens the prosecution case and implicates the
                                        7




appellant in the crime. Hence, appeal is liable to be dismissed and the

sentence of death be confirmed.

Defects in institution of proceeding and charge:-

14.        It has been argued that the three heads of charges contain

various irregularities and refer to different dates of occurrence. While

in the head of charge under section 14(1) of the Act of 1986 the

legislation is incorrectly described and it is alleged that the victim was

employed     in   the   house   of   the   appellant   from 12.05.2012   to

23.05.2012, the second head of charge under section 376A IPC alleges

she had been subjected to rape 'on or before one month ago' from

02.06.2012 i.e. 02.05.2012 to 02.06.2012. Incident occurred on

23.05.2012 and she was admitted to the hospital on that day. In fact,

the third head of charge clarifies the situation and states that the

victim was raped and murdered in the morning of 23.05.2012. The

variations in dates in the first two heads of charges or other minor

errors are inadvertent and when judged in the light of the accusation

made in the third head of charge as well as the consistent evidence on

record do not give an impression that the appellant had been misled by

the aforesaid error to prepare his defence or the same had occasioned

failure of justice.

15.        It is also argued in view of section 16 of the Act of 1986 no

cognizance could have been taken of the offence under the said Act

except on a complaint by the appropriate authority. In the instant case
                                     8




investigation was started on the basis of a FIR alleging offences not

only under the Act of 1986 but other graver offences, namely, rape and

murder. In conclusion of investigation, a police report was filed for the

said graver offences including the offence under section 14(1) of the Act

of 1986. Cognizance was taken on the police report filed by the

investigating officer who is a police officer entitled to initiate

prosecution under section 16 of the said Act. Hence, there is

substantial compliance of the aforesaid provision of law.

Is P.W. 1 reliable?

16.       Prosecution case essentially hinges on the evidence of the

father of the victim girl, P.W. 1. P.W. 1 is also the de facto complainant.

He deposed one month prior to the incident his daughter was

employed as a full time domestic help at the residence of the appellant.

Due to poverty he had sent his daughter to work there. Appellant was

a teacher and his financial condition was good. He had given consent

to his daughter's employment. It is contended he is not a competent

witness as he had not visited the house of the appellant. P.W. 1 is the

father of the victim girl. Owing to his financial stringency, he had given

consent to her employment as a full time domestic help at the

residence of the appellant. These circumstances were within the

knowledge of P.W. 1 and he was competent to depose in that regard.

Merely because he did not go to the residence of the appellant, it

cannot be said that he had derived knowledge from his wife and was
                                      9




not a competent witness. P.W. 1's evidence is further reinforced from

the materials on record which shows it was the appellant who had

taken the victim to Tamluk District Hospital.

17.       In the injury report (Exhibit - 2) at the hospital, it is recorded

the appellant had brought the semi-conscious minor. Her name,

father's name, age and address were also recorded in the report. P.W. 1

was informed and came to the hospital three hours later. It was none

other than the appellant who had furnished the aforesaid personal

information to P.W. 3, the doctor who prepared the injury report. This

probabilises the prosecution case that the victim was working as a full-

time maid at the appellant's residence and such close association gave

him knowledge about her personal details. Prosecution case that the

victim girl had been residing at the house of the appellant as a full

time maid one month prior to the incident is thus clearly established.

18.       Evidence of P.W. 1 has also been challenged on the ground

that he has criminal antecedents. During cross-examination P.W. 1

admitted he had two wives. He had married his second wife Asha by

notary. Asha left with one Purna. This enraged him and he assaulted

Purna. He was in custody in that case. Facts

of the said case are

clearly distinct from the present one. It had nothing to do with the

employment of his daughter in the house of the appellant or his

relation with the appellant which would prompt him to falsely

implicate the latter.

19. There is 7-8 days delay in lodging FIR. Delay in lodging FIR

does not improbabilise a prosecution case if the delay is adequately

explained. Delay must be assessed in the facts of each case. Nature of

the crime, its impact on the victim/complainant and other attending

circumstances must be seen.

20. P.W. 1 comes from an economically weaker section of

society. He is a rickshaw van puller. Due to financial distress he

permitted his daughter to stay and work in the residence of the

appellant, a school teacher. Social and economic gradient between the

parties are self-evident. On 23.05.2012 around 1:00 PM daughter of

P.W. 1 was hospitalized. After three hours, P.W. 1 was informed. He

rushed to the hospital and was told she had consumed poison. Soon

thereafter she died. Appellant assured him of all economic help and

told him not to take the matter to police. P.W. 1 contended during

cremation his wife had seen injury marks on the private parts of her

daughter. As P.W. 1's wife had not been examined, I would like to

discount such fact. However, one cannot lose sight of the fact that P.W.

1, being the unfortunate father, was stunned by the sudden demise of

his daughter. Under such circumstances, delay to approach police is

understandable. Furthermore, he was discouraged by the appellant

through lure of money to set the criminal law into motion. In fact, 7-8

days later he was taken to the house of one Golam Sarwar and was

asked to put LTI on a document stating he would not proceed against

the appellant in lieu of money. He refused to do so. Local people

assembled and he was brought to the police station. Then he lodged

complaint. These circumstances clearly explain the delay in lodging

FIR.

21. P.W. 1 was extensively cross-examined. He stoutly withstood

the cross-examination and firmly established the foundations of the

prosecution. He is a wholly reliable witness and the main plank of the

prosecution case. Non-examination of P.W. 1's wife is for reasons

peculiar to her and have been elaborated later. Her non-examination

does not affect the unfolding of the case. It is the quality and not

quantity of evidence which is vital. When P.W. 1 is found to be reliable

and truthful, his consistent evidence is sufficient to prove that the

victim girl was residing as a full time maid in the house of the

appellant.

Cause of death:-

22. P.W. 5, post mortem doctor has proved the cause of death.

He deposed on 23.05.2012 he examined the body of the victim. On

examination he found the following injuries:-

"Injuries:- (1) One swelling minimally elevated and pushing left ear lobule anteriorly and obliterating the groove behind and 0.5 cm below (also called mastoid groove) lower attachment of left ear lobule measuring approximately 3.5 cm X 3 cm. and gradually subsides into the surrounding tissues. On dissection haematoma and dark scanty blood filled the said groove. Periosterum over mastoid bone tinged with blood permanently. Superior muscle fibres are mopped with blood;

on cleansing blood by swabbing upper part of masstar and buccinator having abraded bruise. Anterior surface of lower

part of left auricle and perichondrium faintly tinged with blood- posterior surface not.

1) Vital reaction positive. The right side counter part NAD even on dissention, 2) One thumb impression like bruise over underneath of right side of chin approximately 0.7 cm. below right angle of right side of Jaw bone measuring 1.5cm. X 1 cm. lies obliquely. On dissection faint haematoma over platysma and right greater horn of hyoid cartilage the pericardium of which is blood tinged permanently and no breakage of hyoid. The Supra hyoid muscles in between having bruises. Vital reaction positive.

In column headed "Marks of ligature on neck dissection etc."- No marks of ligature on neck. On dissection no parchmentisation, the neck area made bloodless by dissecting brain first. Thyroid and hyoid intact, the right side of hyoid - as stated, left ...... not - feature of partial/ one sided throttling. No nail marks.

In column headed "organs of generation, external and internal"-

Vulva well developed (with subcutaneous fat thickness greater than breast budding on dissection confirmatory). Labia majora apposed and labia minora not seen without make it (labia majora) well apart by index and thumb finger of left hand. Hymen ruptured and fibrosed margin mainly at posterior and postero lateral margin with irregular notches and less than pin head sized knots at margin - features suggestive of repeated intercourse. Fornices firm with features of fibrosis. Vaginal canal provides space for mid finger tip particularly at its deep anterior aspect which is not supposed to be provided in a virgin girl rather features are suggestive of repeated sexual intercourse. All these are features of per vaginal examination - which is done in "copy book fashion". The gloved examining fingers, little -ring and then -mid finger are moistened and slippery without any tinge of blood. Before the said per vaginal examination on inspection under a hand lens show features of wiping the area of vulva, upper thighs and pubic region having streaks of fluid marks like 'geographical map area' at places. No blood marks over the corpse in the said area or in the examining gloved fingers. Vaginal swab is moistened without any tinge of blood. No pubic hair. Uterus shape size:- within normal limits. On dissection potential space nothing abnormal detected and whitish."

23. On examination of the teeth, he opined age was 10/12 years.

He further opined as follows:-

" ...- is due to the combined effects of vagus nerve inhibition and from carotid body disturbances, particularly of the left side resulting from the injuries as depicted as well as partial throttling as depicted above ante mortem and homicidal in nature."

He found no sign of poisoning:-

"Finding of the stomach and Proximal. Intestine does not show any features of poisoning, rather reflects vagal inhibition along with carotid body disturbances reflected in the various organs."

24. He also deposed injuries mentioned by him in the post

mortem report were sufficient to cause death in ordinary course of

nature. No poison could be detected. In case of partial one sided

throttling there is possibility of froth coming out of the mouth. He

further stated viscera was preserved and handed over to the police. He

was extensively cross-examined. He clarified that the facial injuries

isolatedly were not sufficient to cause death. He denied the suggestion

that the thumb impression on the neck was self-inflicting.

25. As the viscera report was not received during investigation,

the Court on the prayer of the defence directed the viscera report to be

produced at the time of consideration of charge. Viscera report was

produced and marked as Exhibit 5. Viscera report shows no poison

was found in the stomach of the victim. The post mortem report and

viscera report leaves no doubt in one's mind that the minor victim was

subjected to forcible sexual intercourse and throttled to death. It was

not a case of ingestion of poison.

26. Defence contended the post mortem report is unreliable in

view of the findings of the treating doctors P.Ws. 3 and 4. It was also

submitted there was inordinate delay of around 84 days in submission

of post mortem report. I have given anxious consideration to the

aforesaid submissions. Firstly, with regard to the opinion of the

treating doctors, P.Ws. 3 and 4, I am constrained to hold that their

examination of the victim was most indifferent and perfunctory. Both

the doctors proceeded on the basis the case was one of poisoning.

27. P.W. 3, Dr. Ashok Kumar Paria who treated the victim at the

emergency department in Tamluk District Hospital candidly admitted

he did not examine the private parts of the victim. He also admitted

that he had struck off the words 'patient shows sign of poison' in one

portion of the injury report but could not explain why he had done so.

28. P.W. 4, Dr. Hrishikesh Majumdar examined the victim after

she was admitted to the pediatric ward. His examination of the patient

also appears to be very perfunctory. The doctor admitted he examined

the upper and lower abdomen of the victim over her wearing apparels.

It is beyond one's imagination how a medical officer could have

examined the private parts of a patient without removing her wearing

apparels. In fact, P.W. 4 admitted that the examination of total

abdomen including private parts must be done after removal of

wearing apparels but for reasons best known to him he did not follow

the protocol. Medical examination of the minor at Tamluk District

Hospital appears to be wholly perfunctory and contrary to the

established medical protocol. Opinion of the doctors who conducted

such perfunctory and indifferent examination is of little, if not, of any

consequence.

29. P.W. 4 went a step further and deposed he had disclosed to

I.O. that neither the girl nor any patient party complained of rape. He

also stated he had disclosed to I.O. the girl had uttered the word

'poison' twice and pointed upstairs as the source of poison.

30. P.W. 6 (I.O.) does not corroborate the doctor on this aspect.

On the other hand, opinion of post mortem doctor P.W. 5 categorically

rules out the possibility of the victim being in a position to speak after

having received injuries as noted in the report. P.W. 1 who saw the

victim in the hospital also stated his daughter was unable to speak.

31. These circumstances improbabilise the version of P.W. 4 with

regard to the victim being able to speak and the claim that she had

consumed poison.

32. It has been strenuously argued there is an inordinate delay

in submitting the post mortem report. This renders the report

vulnerable. It is true the report was submitted after 84 days of post

mortem examination. Materials on record show police made prayer to

collect post mortem report but was unable to do so. Superintendent of

the hospital wrote letter to the post mortem doctor (P.W. 5) calling

upon him to submit the post mortem report in the present case and

other cases too. From the letter it appears that the delay in submitting

the post mortem report is not unique to the present case. It was a

generic delay affecting all cases. Bureaucratic delay of such nature in

Government hospitals is not uncommon. They are due to bureaucratic

inefficiencies, lack of manpower and other facilities etc. Delay due to

bureaucratic red tapism affecting all cases in general including the

present one does not create an impression that the report prepared by

P.W. 5 was a false one procured through political malice. Suggestion

given in this regard was stoutly denied by P.W. 5. Post mortem

examination was promptly conducted on 23.05.2012. It is common

knowledge while examining the body, a post mortem doctor maintains

notes. Formal report is prepared on the basis of such notes. Hence,

delayed submission of report due to bureaucratic lethargy when the

post mortem examination was, in fact, conducted within 24 hours of

death does not affect the credibility of the report.

33. Post mortem doctor deposed that the viscera was collected

and handed over to the police. P.W. 7 claimed that the viscera had

been sent to the forensic laboratory through a constable, Nirmal

Kumar De. On the prayer of the defence, the trial Court directed the

viscera to be produced. Pursuant to such direction viscera was

produced. In this backdrop, non-examination of the constable who

took the viscera to the forensic laboratory does not snap the live link

between the viscera collected and the report produced from FSL

laboratory pursuant to the direction of the trial Court.

34. The viscera report (Exhibit- 5) shows no poison was detected

in the body of the victim. This renders the defence version that the

victim committed suicide by consuming poison untrue. Prosecution

case that the victim was raped and throttled to death is established

beyond doubt.

Age of victim:-

35. It is contended age of victim has not been established. It is

further argued opinion of post mortem doctor that the victim was

between 10/12 years based on denture is not conclusive. Father of the

victim (P.W. 1) stated in F.I.R. her daughter was 13-years old at the

time of incident. Evidence of a parent is the best and direct evidence

regarding age of his/her child. More so, appellant who brought the

victim to Tamluk District Hospital gave out her age as 12 years which

was noted in the injury report, Exhibit- 2 by P.W. 3. These

circumstances establish beyond doubt the victim was 12/13 years old

at the time of incident.

Non-examination of witnesses:-

36. Defence argued that the prosecution case ought to fail on the

ground of non-examination of vital witnesses. Mother of the victim

Asha Bhunia had not been examined. Her deposition was necessary for

unfolding of the prosecution case. In addition thereto, neither the

medical personnel at RRB Nursing Home (where the victim was first

treated) nor the cycle rickshaw puller (who took the victim to hospital)

were examined. Other witnesses, namely, Satya Kinkar Das, Biswajit

Manna, Tapan Sarkar, Saroj Kumar Biswas were not examined. These

witnesses were examined by investigating officer during investigation

but were not examined in Court. Their non-examination gives rise to

an adverse inference against the prosecution case.

37. During trial the prosecutor submitted a prayer stating he did

not wish to examine other witnesses as they had been won over. It is

argued mere ipse dixit of the prosecutor is not sufficient. It is open to a

prosecutor to choose the witnesses he would examine to prove his

case. It is not mandatory to examine all witnesses cited in the charge-

sheet. More so, when it is contended the said witnesses have been won

over. In the present case, appellant comes from a superior socio-

economic strata of society and evidence is forthcoming that the father

of the victim (P.W. 1) (a poor rickshaw puller) had been subjected to

threats and coercion including offers of money to keep silent. In this

backdrop, I am prompted to accept the prosecution version that other

witnesses had been won over and were not examined.

38. It would be argued non-examination of Asha, mother of the

victim was fatal. In State of UP and Another vs. Jaggo alias Jagdish

and Others2 the Apex Court, inter alia, held as follows:-

"14. ... It is true that all the witnesses of the prosecution need not be called but it is important to notice that the witness whose evidence is essential to the "unfolding of the narrative" should be called..."

Let me examine whether in the backdrop of the evidence on record

non-examination of Asha had impaired the unfolding of the case.

39. Prosecution case that the minor was residing in the house of

the appellant as a full time made is proved by P.W. 1. True, Asha

(mother of the victim), if examined may have corroborated her husband

but her non-examination does not create a void which impacts the

unfolding of the case. Even if it is accepted the fact that she noticed

injuries in the private parts of her daughter during cremation is not

proved due to her non examination, P.W. 5 post mortem doctor has

unequivocally proved the presence of injuries in the private parts of the

victim and established the prosecution case of rape and murder

beyond doubt.

40. Moreover, evidence is forthcoming soon after the incident

Asha went missing. She had eloped with one Purna. Over such issue

P.W. 1 entered into fracas with Purna. He was jailed. During the

hearing of the appeal, this Court made enquiry about the whereabouts

of Asha. Report was filed on behalf of the prosecution that Asha was

(1971) 2 SCC 42

residing with Purna. These circumstances lay bare the reasons why

Asha did not find it convenient to come and depose regarding the

circumstances leading to the unfortunate death of her daughter born

out of P.W. 1. Her affection lay with her paramour and she was an easy

victim to be persuaded by the appellant not to depose.

41. Bed head ticket and injury report (Exhibis - 3/3 and 2)

respectively of Tamluk District Hospital do not show that the victim

had been referred to the hospital from another medical institution,

namely, RRB Nursing Home. Appellant may have initially taken the

victim to the nursing home but she does not appear to be admitted in

the said medical institution. Under such circumstances, non-

examination of the medical personnel of the nursing home or the cycle

rickshaw puller who took the victim there does not affect the unfolding

of the prosecution case.

42. Other local witnesses including Satya Kinkar Das, an

employee of BSNL are also of little relevance to the unfolding of the

prosecution case. It is the prosecution case that the incident occurred

at the residence of the appellant. When the crime is committed within

the four walls of a house, examination of local witnesses would hardly

throw any light with regard to the circumstances leading to the

commission of the crime. On the other hand, it was the defence version

that the appellant had found victim lying on the floor of BSNL office.

He had taken her to hospital along with local people. Appellant could

have examined the said local people to probabilise such defence which

he failed to do. Examination of the local people therefore was not

essential for unfolding the prosecution case but may have lent

credence to the defence version. Failure of the defence to examine them

to probabilise its desperate plea cannot render the prosecution case

vulnerable.

Falsity of the defence version:-

43. In the course of his examination under section 313 Cr.P.C.

the appellant stated the victim used to take computer lessons in a free

coaching center. On the fateful day he saw her lying on the floor of

BSNL office and took her to hospital. He was accompanied by local

people.

44. Falsity of the defence version is writ large from the materials

on record. Victim was a 12/13 year old uneducated girl. Owing to their

financial condition, the child had been employed as a whole time

domestic help in the household of the appellant. No suggestion was

put to P.W. 1 that her daughter was educated and was taking

computer lessons. Belatedly during his examination under section 313

Cr.P.C. did the appellant come up with this plea.

45. P.W. 3, the doctor who treated the victim at emergency

department in Tamluk District Hospital, deposed the victim had been

brought by the appellant. Victim was in semi conscious state. Name of

the victim, her age, father's name and address were noted by the said

doctor in the injury report. None other than the appellant who had

brought the victim to the hospital could have disclosed these facts to

the doctor. Disclosure of the personal details of the victim by the

appellant to the treating doctor supports the prosecution case that she

was working as a whole time maid in his house and wholly

improbabilises the defence version.

46. Appellant also took a false plea that the victim had consumed

poison. P.Ws. 3 and 4 appear to have been misled by such plea and the

frothing coming out from the mouth of the victim. P.W. 5 post mortem

doctor opined such frothing may be caused due to partial throttling

and the viscera report clearly rules out a case of poisoning.

47. As discussed earlier, non-examination of the local people

were not essential for unfolding the prosecution case but may have

probabilised the defence version. Defence did not lay the foundation of

its case through cross-examination which may have cast an onus on

the prosecution to improbabilise it. Only during his examination under

section 313 Cr.P.C. the appellant came out with false explanation that

he had seen the child lying on the floor of BSNL office and had taken

her to hospital.

48. Falsity of the defence version is an additional incriminating

circumstance which points to the guilt of the appellant.

Does conduct of the appellant improbabilise the prosecution case:-

49. It would be argued as the appellant had taken the victim to

hospital, the prosecution case that he intended to murder her is

demolished.

50. On the first blush the argument is attractive. But a deeper

scrutiny would show that the victim who was working as a whole time

maid in the house of the appellant had been raped and murdered. He

was the sole male member of the household. To cover his misdeed he

took a false plea that the victim had consumed poison and admitted

her to hospital.

51. His subsequent conduct though ameliorative in assessing the

quantum of punishment does not wash away the crime. Appellant had

raped the minor girl and in the course of such act had partially

throttled her. Appellant had intentionally caused injuries while brutally

raping the minor victim. In view of her tender age, he knew the injuries

were likely to cause death. Post mortem doctor (P.W. 5) also opined the

injuries were cumulatively sufficient in ordinary course of nature to

cause death. Act of the appellant would, therefore, fall within clause (2)

and (3) of section 300 I.P.C.3 and would constitute murder.

2ndly. - If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or 3rdly.- If it is done with the intention of causing bodily injury to any person and the bodily injury indented to be inflicted is sufficient in the ordinary course of nature to cause death.

52. Reliance placed on State of Rajasthan vs. Prithviraj4 is

inapposite. The case is factually distinguishable. In the cited case the

accused had led defence evidence to prove his alibi which

improbabilised the dying declaration. In this backdrop, the Court held

the accused taking the victim to hospital was an additional

circumstance pointing to his innocence. Present case portrays a

completely different picture. Post mortem doctor as well as the viscera

report establishes beyond doubt the prosecution case of rape and

murder. It improbabilises the defence version of poisoning and exposes

the desperate plea of poisoning taken by the appellant which misled

the treating doctors at the hospital.

Circumstances proved:-

53. Prosecution has therefore been able to establish the following

circumstances beyond doubt:-

a) Victim a 12/13 year old girl was working as a whole

time maid in the house of the appellant;

b) Appellant was the only male member in the house;

c) On the date of incident, he took the victim in a semi

conscious condition to the hospital;

d) At the time of admission, he gave out the particulars of

the victim which probabilises the prosecution case regarding

her employment in his household;

1995 Supp (3) SCC 410

e) To cover his misdeeds, he stated that the victim had

consumed poison. This misled the treating doctors (P.Ws. 3

and 4) who were prompted to treat her for poisoning and did

not medically examine the victim properly as per protocol;

f) Post mortem doctor (P.W. 5) opined that the victim had

been raped and partially throttled resulting in her death. He

further opined viscera report ruled out any case of

poisoning;

g) In the course of examination under section 313 Cr.P.C.

appellant came out with a false plea with regard to the

manner in which he had found the victim and had taken her

to hospital. This is an additional incriminating circumstance

militating against his innocence and establishing the

prosecution case.

Conclusion:-

54. The aforesaid incriminating circumstances clearly establish

the guilt of the appellant. Accordingly, he is convicted for commission

of offences under sections 376-A, 302 of I.P.C and 14(1) of the Act of

1986.

Death sentence:-

55. At the outset this Court notes with concern the cavalier

manner in which the sentencing was done by the trial Court. Though

the appellant was convicted on three counts, trial Court instead of

awarding sentence on each count awarded the sentence of death in a

composite manner. Awarding of a composite sentence is not

countenanced in law and is patently illegal.

56. While awarding death penalty, the Court merely referred to

the aggravating circumstances, namely, the victim was a 12-year old

domestic help who was raped and murdered by a school teacher. It did

not take into account the mitigating circumstances and held the

heinous act deserves death penalty on principle of proportionality.

57. In Santosh Kumar Satishbhushan Bariyar vs. State of

Maharashtra5 the Apex Court analyzing the ratio in Bachan Singh vs.

State of Punjab6 held a case would fall within the 'rarest of rare'

category only when the alternate option of life sentence is

unquestionably foreclosed:-

"64. Another aspect of the rarest of rare doctrine which needs serious consideration is interpretation of latter part of the dictum (SCC p. 751, para 209) -- "[t]hat ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed (emphasis supplied)". Bachan Singh [(1980) 2 SCC 684] suggested selection of death punishment as the penalty of last resort when, alternative punishment of life imprisonment will be futile and serves no purpose."

58. To arrive at such conclusion the Court must not only be

guided by the brutality of the crime but must make a dispassionate

analysis of both the aggravating and mitigating circumstances. The

Court must come to a finding that there is no clear evidence why the

(2009) 6 SCC 498

(1980) 2 SCC 684

convict is not fit for any kind of reformatory and rehabilitation scheme.

In Bariyar (supra) the Bench highlighted the importance of mitigating

circumstances in death penology as follows:-

"71. It has been observed, generally and more specifically in the context of death punishment, that sentencing is the biggest casualty in crimes of brutal and heinous nature. Our capital sentencing jurisprudence is thin in the sense that there is very little objective discussion on aggravating and mitigating circumstances. In most such cases, courts have only been considering the brutality of crime index. There may be other factors which may not have been recorded.

72. ...The test which emanates from Bachan Singh [(1980) 2 SCC 684] in clear terms is that the courts must engage in an analysis of aggravating and mitigating circumstances with an open mind, relating both to crime and the criminal, irrespective of the gravity or nature of crime under consideration. A dispassionate analysis, on the aforementioned counts, is a must. The courts while adjudging on life and death must ensure that rigour and fairness are given primacy over sentiments and emotions."

59. Ruling out principle of proportionality as the sole parameter

to impose death penalty, the Bench further observed:-

"159. Although the Constitutional Bench judgment of the Supreme Court in Bachan Singh [(1980) 2 SCC 684] did not lay down any guidelines on determining which cases fall within the "rarest of rare" category, yet the mitigating circumstances listed in and endorsed by the judgment give reform and rehabilitation great importance, even requiring the State to prove that this would not be possible, as a precondition before the court awarded a death sentence. We cannot therefore determine punishment on grounds of proportionality alone. There is nothing before us that shows that the appellant cannot reform and be rehabilitated."

(emphasis supplied)

60. In the present case, though the appellant had come out with

a false plea of ingestion of poison in the hospital it cannot be denied

that his conduct of taking the victim to hospital after the incident

clearly portrays that he is not bereft of the possibility of being reformed

and rehabilitated. This was completely lost sight of by the trial Court.

61. In this backdrop, I am of the opinion the imposition of death

sentence was completely erroneous and is liable to be set aside.

62. Accordingly, I set aside the sentence of death and award the

following sentences:-

(a) Appellant shall suffer rigorous imprisonment of 20 years and

to pay a fine of Rs. 25,000/-, in default, to suffer rigorous

imprisonment for 2 years more for the offence punishable

under section 376A I.P.C.;

(b) He shall suffer rigorous imprisonment for life and to pay a

fine of Rs. 20,000/-, in default, to suffer rigorous

imprisonment for 2 years more for the offence punishable

under section 302 I.P.C.;

(c) He shall suffer rigorous imprisonment for one year and pay a

fine of Rs. 10,000/-, in default, to suffer rigorous

imprisonment for 2 months more for the offence punishable

under section 14(1) of the Act of 1986. All the sentences shall

run concurrently.

63. Death Reference No. 3 of 2018 and Criminal Appeal No. 177

of 2018 are, accordingly, disposed of.

64. Period of detention suffered by the appellant during

investigation, enquiry and trial shall be set off from the substantive

sentence imposed upon him in terms of Section 428 of the Code of

Criminal Procedure.

65. A copy of the judgment along with L.C.R. be sent down to the

trial Court at once for necessary action.

66. Urgent Photostat certified copy of this order, if applied for, be

given to the parties on priority basis upon compliance of all formalities.

I agree.

(Ajay Kumar Gupta, J.)                             (Joymalya Bagchi, J.)




PA