Calcutta High Court (Appellete Side)
State Of West Bengal vs Saiful Ali & Ors on 6 October, 2023
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. 2 of 2016
STATE OF WEST BENGAL
...APPELLANT
Vs.
SAIFUL ALI & ORS.
...RESPONDENTS
C.R.A. No. 108 of 2016
BHOLA NASKAR @ BHOLANATH NASKAR
...APPELLANT
Vs.
STATE OF WEST BENGAL
...RESPONDENT
WITH
C.R.A. No. 109 of 2016
SK EMAMUL ISLAM
...APPELLANT
Vs.
STATE OF WEST BENGAL
...RESPONDENT
WITH
C.R.A. No. 110 of 2016
AMIN ALI
...APPELLANT
Vs.
STATE OF WEST BENGAL
...RESPONDENT
WITH
C.R.A. No. 111 of 2016
ANSAR ALI
...APPELLANT
Vs.
STATE OF WEST BENGAL
...RESPONDENT
WITH
C.R.A. No. 133 of 2016
WITH
CRAN 1 of 2023
WITH
CRAN 2 of 2023
WITH
CRAN 3 of 2023
SAIFUL ALI
...APPELLANT
Vs.
STATE OF WEST BENGAL
...RESPONDENT
WITH
C.R.A. No. 240 of 2016
AMINUR ISLAM @ BHUTTO
...APPELLANT
Vs.
STATE OF WEST BENGAL
...RESPONDENT
WITH
C.R.R. No. 2789 of 2014
ANSAR ALI
...APPELLANT
Vs.
STATE OF WEST BENGAL
...RESPONDENT
WITH
C.R.R. No. 3828 of 2014
WITH
CRAN 1 of 2014 (Old No. CRAN 4521 of 2014)
ANSAR ALI
...APPELLANT
Vs.
STATE OF WEST BENGAL
...RESPONDENT
WITH
G.A. 1 of 2016
STATE OF WEST BENGAL
...APPELLANT
Vs.
NOOR ALI @ NURO & ANR.
...RESPONDENT
For the Appellant : Mr. Y.J. Dastoor, Sr. Adv.
Mr. Phiroze Edulji, Adv.
Mr. Sanjib Kumar Das, Adv.
[in CRA 108 of 2016,
CRA 109 of 2016 and
CRA 111 of 2016]
Mr. Sabyasachi Banerjee, Adv.
Mr. Arindam Dey, Adv.
Ms. Shreya Rastogi, Adv.
Mr. Smarajit Basu, Adv.
Mr. Amartya Kanjilal, Adv.
Mr. Amitayu Kundu, Adv.
Ms. Stuti Rai, Adv.
[in CRA 133 of 2016]
Mr. Satadru Lahiri, Adv.
[in CRA 110 of 2016]
Mr. Kaushik Gupta, Adv.
[in CRA 240 of 2016]
Mr. Jayanta Narayan Chatterjee, Adv.
Mr. Shirsendu Sinha Roy, Adv.
Ms. Moumita Pandit, Adv.
Mr. Supreem Naskar, Adv.
Ms. Jayashree patra, Adv.
Ms. Ritushree Banerjee, Adv.
Ms. Pritha Sinha
[For the de-facto complainant]
For the State : Mr. Ranabir Roy Chowdhury, Adv.
Md. Sabir Ahmed, Adv.
Mr. Sanjay Banerjee, Adv.
Mr. D.R. Ghosh, Adv.
Heard on : 16.01.2023, 17.01.2023, 24.01.2023,
10.02.2023, 22.02.2023, 20.03.2023,
21.03.2023, 27.03.2023, 29.03.2023,
04.04.2023, 11.04.2023, 12.04.2023,
13.04.2023, 17.04.2023, 18.04.2023,
19.04.2023, 26.04.2023, 02.05.2023,
03.05.2023, 10.05.2023, 18.05.2023,
06.06.2023, 08.06.2023, 12.07.2023,
17.07.2023, 19.07.2023, 28.07.2023
Judgment on : 06.10.2023
INDEX
Serial Topic Page No.
No.
A. Prosecution case 8-13
B. Evidence on record 14-27
(a) Prosecution Evidence 14-26
i. Related witnesses 14-18
ii. Local witnesses 18-19
iii. Witnesses regarding
ownership and control of 8 19-20
bigha plot
iv. Witnesses to the 20-21
conspiracy
v. Medical witnesses 21-22
vi. Forensic experts 22-23
vii. Judicial confession of 23
Saiful and Bhola
viii. Police witnesses 23-26
(b) Defence witnesses 26-27
C. Rape and murder of the victim 27-28
D. Place of occurrence 28-31
E. Time of occurrence 31-33
F. Perpetrators of crime 33-60
(a) Role of Saiful in the crime 33-60
i. Judicial confession 33-41
ii. Truthfulness of confession
- inculpatory part 41-46
corroborated
(iii-a) Identity of pubic 47-49
hair and chain of
custody
(iii-b) Malkhana storage 49-50
conditions
(iii-c) Probative value of 50-60
DNA profiling report
G. Criminal conspiracy to commit rape- 60-66
whether proved
i) P.Ws. 14 and 15 whether 60-66
reliable
H. Role of Ansar in the crime 67-75
ii) Presence at the place of 68-69
occurrence
iii) Nail scratches on body 69-70
iv) Exculpatory portion of
Saiful's confession - 70-74
inherently improbable
I. Role of Bhutto, Emamul, Bhola and 75-78
Amin
J. Conspiracy to cause disappearance 79-80
of evidence
K. State appeal - whether acquittal of 80-81
Nuro and Rafiqul is justified
L. Conclusion 81-92
i. Conviction 81-82
ii. Sentence 82-92
Joymalya Bagchi, J.:-
1. Appeals and death references are directed against the
judgment and order dated 28.01.2016, 29.01.2016 and 30.01.2016
passed by learned Additional District & Sessions Judge, Bench - II, City
Sessions Court, Bichar Bhawan, Calcutta in Sessions Case No. 88 of
2013 (Sessions Trial No. 1(09) of 2013) convicting the appellants Saiful
Ali for commission of offences punishable under sections
376A/376D/302/ 120B/201/109/342 of the Indian Penal Code,
appellants Ansar Ali and Amin Ali for commission of offences
punishable under sections 376A/376D/302/120B/201 of the Indian
Penal Code, appellants Sk. Emamul Islam, Bhola Naskar, Aminur Islam
@ Bhutto for commission of offences punishable under sections
376D/120B/201 of the Indian Penal Code, sentencing appellants Saiful
Ali, Ansar Ali and Amin Ali to death and appellants Emamul Islam,
Bhola Naskar and Aminur Islam @ Bhutto to suffer imprisonment for
life which shall mean imprisonment for remaining portion of their life.
A. Prosecution case:-
2. On 7th June, 2013 the victim aged around 20 years, a student
of Derozio College had left her residence at 7:30 a.m. to appear for an
examination at the said college. She was accompanied by her brother
(P.W. 1) to Kamduni More where she took a bus to go to the college.
Victim was to return by noon and P.W. 1 was supposed to receive her at
Kamduni More. As it was raining, P.W. 1 was late in reaching Kamduni
More. When he reached the spot, he could not find the victim. Upon
enquiry, he was told by his uncle Bimal Ghosh (since deceased), a Sattu
vendor at the bus stop that the victim had alighted from the bus around
2:00 p.m. and had proceeded towards home on foot. Hearing this, P.W.
1 returned home. To his utter consternation he found that the victim
had not come back. He again proceeded towards Kamduni More. He did
not find the victim. While proceeding towards home, he saw Ansar Ali
(caretaker of 8 Bigha plot) closing the gate of the said plot. Saiful was
beside Ansar and was telling the latter that they had a great time and
should go home. Upon returning home, he and his mother informed
other relations that the victim was missing. A search ensued but the
victim could not be traced. During search, some of the members of the
search party saw Saiful, Ansar, Emamul, Bhutto, Bhola and Gopal near
the 8 Bigha plot. They were behaving suspiciously and one of them saw
they were showing something to Gopal behind the boundary wall of 8
Bigha plot.
3. It is the prosecution case that the 8 Bigha plot was a
notorious area and womenfolk in the locality used to be teased while
crossing the area. This was the reason why the victim was always
accompanied by one of her brothers while she went to college crossing
the area. As the victim could not be found in the locality, the search
party wanted to search the 8 Bigha plot which was bounded by a wall.
The gate of the plot was locked. Ansar was the caretaker of the plot and
the key was with him. A hutment namely 'Alaghor' situated beside the
plot used to be occupied by Ansar and his associates. When Ansar was
asked to open the property, initially he refused. Subsequently, he
relented.
4. Inside the plot there was a structure with three rooms.
Relations of the victim and others entered the plot and noticed blood on
the floor of the room. While searching, one of them, namely, Pratap
Ghosh (P.W. 6) discovered the body of the girl lying on a high ground
which was adjoining the 8 Bigha plot surrounded by water bodies. He
raised alarm. Others arrived at the spot and identified the victim. The
girl was found in a semi naked condition. A commotion ensued in the
locality. Local people started protesting against the heinous crime.
5. Information was received by P.W. 29, SI Soumen Pal, officer-
in-charge, Aminpur IC, Barasat Police Station. He rushed to the spot.
Due to commotion he was unable to take immediate steps. A
photographer (P.W. 17) took photographs of the body. With the help of
force, the body was removed to Barasat Hospital where inquest was
held. Post mortem was conducted by a medical board comprising of
P.Ws. 23 and 24. They opined that the victim had been raped and had
died due to effects of smothering which were ante mortem and
homicidal in nature.
6. In the course of investigation, P.W. 29 arrested Amin, Ansar
and Noor @ Nuro on 08.06.2013. Thereafter, Saiful, Bhola and Gopal
were arrested. Subsequently, investigation was transferred to CID and
taken over by SI Anandamay Chattopadhayay (PW 31). During
investigation on 14.06.2013, Saiful admitted his guilt before police. On
his showing, his blood-stained lungi was seized. He was produced
before the Magistrate on 18.06.2013 and sent for reflection. On
19.06.2013 his judicial confession was recorded. Similarly, Bhola
Naskar was produced before the Magistrate for making judicial
confession. On 19.06.2013 he made an exculpatory statement. It may
also be pertinent to note after arrest the appellants were medically
examined and nail scratch marks were found on Ansar Ali and scratch
abrasions on Amin Ali. Blood samples were drawn from the appellants
and sent for FSL examination along with samples collected at the spot
and the biological materials including blood vaginal swab and pubic
hair collected by post mortem doctor. Deoxyribonucleic Acid ('DNA' for
short) profiling report (Exhibit - 29a) showed the semen of Saiful on the
pubic hair of the deceased. During further investigation on 06.07.2013,
P.W. 31 posted notices at conspicuous places requesting people to
provide information regarding the crime. In response to the notice,
P.Ws. 14 and 15 came to the police station on 08.07.2013 and stated on
2nd or 3rd June, 2013 they had seen the appellants, one Nuro, Rafiqul,
Saiful, Ansar, Emamul, Aminur, Bhola and Gopal sitting at a tea stall
and discussing the womenfolk of Kamduni. Ansar stated that the victim
did not pay attention to them to which Saiful had replied she would be
taken inside the 8 Bigha plot and taught a lesson.
7. Initial charge-sheet was submitted against Saiful, Ansar,
Emamul, Aminur @ Bhutto, Gopal and Bhola. Case was committed to
the Court of Sessions at Barasat. Pursuant to a direction of this Court,
the case was transferred to the file of Bench - II, City Sessions Court,
Bichar Bhawan, Calcutta for trial.
8. Subsequently, supplementary charge-sheet was submitted
against Amin Ali, Nuro @ Nur Ali, Rafiqul Islam (as an absconder along
with others).
9. Charges were framed against the appellants including Noor Ali
@ Nuro under the following heads:-
i) Criminal conspiracy to commit gang rape punishable under
section 120B IPC;
ii) Criminal conspiracy to commit rape and murder punishable
under section 120B IPC;
iii) Criminal conspiracy for disappearance of evidence to search
the offender punishable under section 120B IPC;
iv) Gang rape punishable under section 376D IPC;
v) Murder punishable under section 302 IPC;
vi) Rape and commission of bodily injuries in the course of such
act which caused death of the victim punishable under section
376A IPC;
vii) Disappearance of evidence punishable under section 201 IPC;
viii) Abetment of the aforesaid offences punishable under section
109 IPC.
Additionally the following charges were framed against Saiful:-
i) Wrongful confinement of the victim punishable under section
342 IPC;
ii) Rape and infliction of bodily injuries in the course of such act
resulting in death punishable under section 376A IPC;
iii) Murder of the victim punishable under section 302 IPC and
iv) Abetment of the aforesaid offences punishable under
section109 IPC.
10. During trial, Gopal Naskar died and the case was abated
against him. Rafiqul Islam was absconding and was arrested in the
midst of trial. Charges were framed against him and he was put on trial
after framing of similar charges.
11. Prosecution examined 31 witnesses and exhibited a number of
documents to prove its case. Defence of the appellants was one of
innocence and false implication. Saiful Islam and Bhola Naskar
retracted their confessions. Ansar, Aminur Islam @Bhutto, Emamul
Islam, Noor Ali, Rafiqul and Amin Ali took the plea of alibi. To prove
their alibi they examined defence witnesses. Amin Ali examined D.W. 1
to show that he was working at a marble shop at the time of occurrence.
During his examination under section 313 Cr.P.C. he claimed that he
had suffered the injuries while working at the marble shop. Emamul
Islam examined his son (D.W. 8) and a mason working in his house
(D.W. 9) to show that he was present at his residence at the time of
occurrence. Aminur Islam @ Bhutto examined D.W. 10, his sister-in-law
who claimed that the said accused had come to her house for lunch and
had left in the evening. D.Ws. 11, 12 and 13 were examined by Ansar
Ali to prove his alibi. During his examination under section 313 Cr.P.C.
Ansar Ali stated that he suffered injuries due to assault in police
custody. Similarly, Noor Ali examined D.Ws. 2, 3, 4 and 5 to show that
he was working at his place of work and as his daughter fell ill, he had
taken her for treatment to the doctor (D.W. 5). Rafiqul examined D.Ws.
6 and 7 to prove his alibi.
12. Upon analysis of the evidence on record, the trial Judge by the
impugned judgment and order convicted and sentenced the appellants,
as aforesaid. By the self-same judgment and order, she acquitted Noor
Ali @ Nuro and Rafiqul Islam Gazi of the charges levelled against them.
13. As Saiful, Ansar and Amin were sentenced to death, reference
was made to this Court to confirm the sentence. All the convicted
appellants had appealed while the State has preferred appeal against
the acquittal of Noor Ali @ Nuro and Rafiqul Islam Gazi.
14. All the appeals and death references were heard together.
B. Evidence on record:-
B.(a) Prosecution Evidence:-
i) Related Witnesses:-
15. P.Ws. 1, 2, 3, 4, 7, 8, 9, 12 and 13 are relations of the
deceased.
16. P.W. 1 is the brother of the victim. He deposed victim was a
student of Derozio College. He deposed his sister had to cross a
notorious area in the way while going to college. Hence, he used to
accompany her. Ansar, Saiful, Gopal and others used to harass women
at the spot. Accused used to sit there, take liquor, play cards and tease
girls. It was unsafe for the girls to cross the area without an escort. On
7th June, 2013 in the morning he accompanied his sister to Kamduni
More. At 2:00 p.m. he left his residence to bring her back. As it was
raining he was delayed. He did not find his sister at Kamduni More. He
enquired from his uncle one Bimal Ghosh, a vendor at Kamduni More
about her whereabouts. Bimal stated that she had proceeded towards
her residence. 8 bigha plot was situated beside the road which joins
Kamduni More to their residence. He returned home and found she had
not come back. He again went to Kamduni More and while proceeding
back towards home he saw Ansar locking the gate of 8 bigha plot. Saiful
was talking with Ansar and was stating that they had a great time and
should go home. Ansar had driven away the security guards deployed
by the owner of 8 bigha plot and was acting as its caretaker. He was in
possession of the lock and key to the said plot. After returning home, he
found there was no information regarding the whereabouts of his sister.
Accordingly, he called up relatives and friends to find her whereabouts.
17. A search commenced in the locality but the victim could not
be traced. They asked Ansar to open the gate of 8 bigha plot. But he
refused. On the contrary, he stated the girl may have eloped. Upon
pressure he opened the gate. There were three rooms inside the
boundary. Ansar was compelled to open the rooms. In the meanwhile,
some people shouted from behind the boundary wall that the dead body
of the victim had been recovered. The victim was found in semi naked
condition. Her inner garment was on breast. Her private parts were torn
apart and bleeding. Initially, he identified Ansar, Saiful, Gopal and
Bhola in Court. On subsequent day, he identified Emamul Islam, Nuro,
Amin Ali and Rafiqul.
18. P.W. 2 is the elder brother of the victim. He deposed he
received call from his brother, P.W. 3 that their sister had not returned
home. He also received call from P.W. 1. He returned home and joined
the search. He deposed Ansar refused to open the gate but
subsequently was compelled to do so. They found blood stains on the
floor of the rooms inside 8 bigha plot. Subsequently, body of the victim
was found in semi naked condition. After 3/4 hours police came to the
spot and sent the body for post mortem examination. He lodged written
complaint (Exhibit 1) naming Ansar Ali, Amin Ali, Nuro @ Nur Ali and
Rafiqul Islam Gazi as the suspects.
19. P.W. 3 is the scribe of the written complaint. He deposed his
paternal aunt (P.W. 12) that is the mother of the victim had informed
that the latter had not returned home. Hearing the news he came and
joined the search. Body was recovered from a road adjacent to the
boundary of 8 bigha plot. Police took the dead body for post mortem
examination.
20. P.W. 4 is a cousin of the deceased. He came to know that the
victim was missing from her mother, P.W. 12. He went to Kamduni
More and was told by Bimal that the victim had proceeded towards her
residence. Body of the victim was found behind the 8 bigha plot
boundary. Ansar used to act as caretaker of the plot. Key of the plot was
with him. Police came to the spot and seized controlled earth, wearing
apparels and bag of the deceased containing a clipboard having a
passport photo, ID card, etc. He signed on the seizure list.
21. P.W. 7 is another cousin of the victim. He has corroborated
the other witnesses. He deposed body was recovered by Pratap Ghosh
(PW 6). He is a signatory to the seizure list.
22. P.W. 8 is the uncle of the deceased. He deposed initially Ansar
refused to open the gate but subsequently was compelled to do so.
Thereafter, the body of the victim was recovered. He identified Ansar in
Court.
23. P.W. 9 is a cousin of the deceased. He deposed he came to
know that the victim had gone to take an examination but had not
returned home. He joined the search party. Around 5:00 p.m. he saw
Saiful, Ansar, Emamul and Bhutto going to the main road from 8 bigha
boundary. Gopal was standing a little away from the ala room. The
aforesaid persons were showing Gopal something behind the boundary
wall. Initially, Ansar refused to open the gate of 8 bigha plot but
subsequently agreed to do so. They entered the plot and found blood
stains in the rooms inside the plot. Pratap went behind the boundary
wall and discovered the body of the victim. He identified Bhutto, Gopal
and Saiful in Court. He incorrectly identified Amin Ali as Ansar.
24. P.Ws. 12 and 13 are the parents of the deceased.
25. P.W. 12 is the mother of the victim. She deposed victim used
to complain that she was teased by Ansar Ali, Amin Ali, Noor Ali,
Rafique, Bhola and Gopal. P.W. 1 used to escort her when she passed
Kamduni More. On the fateful day, P.W. 1 had accompanied her to
Kamduni More. In the afternoon when he went to bring her back, the
victim was not found. Bimal told P.W. 1 that she had proceeded towards
her home. But the victim did not return. P.W. 1 again went to Kamduni
more to search the victim but could not find her. Relatives and friends
were informed. Subsequently, she came to know that body of her
daughter was traced out behind the boundary of 8 bigha plot. She
identified the accused in Court. She stated that a month ago while she
was accompanying her daughter, accused had passed lewd remarks.
She disclosed the incident to her husband but had not reported the
matter to police.
26. P.W. 13 is the father of the victim. He stated that he had gone
to work on the fateful day. Upon returning around 6:00 p.m. he found
his wife crying. Upon query he came to know that their daughter was
missing. He corroborated his wife that the victim used to be teased by
the accused. During search Ansar was compelled to open the gate of 8
bigha plot. They found blood stains inside 8 bigha plot. Suddenly,
Pratap went behind the boundary wall and discovered the dead body of
his daughter.
ii) Local witnesses:-
27. P.Ws. 5, 6 and 10 are local villagers who had joined the
search.
28. P.W. 5, Lakhmikanta Ghosh deposed upon hearing the
incident he came to the 8 bigha plot. He deposed Ansar, Gopal, Bhola
used to sit near the plot and drink. Body of the victim was found behind
the boundary of the plot. He was a signatory to the seizures made by
the police.
29. P.W. 6, Pratap Ghosh stated upon returning home from work
he heard the victim was missing. He joined the search. He went inside
the 8 bigha plot. When he approached the end of the boundary wall, he
found the body of the victim in semi naked condition. Police was
informed. He was a signatory to the seizures made by the police. Police
took the victim to hospital. He accompanied the victim and signed on
the inquest report. He deposed Gopal, Ansar, Bhola and Rafique used to
remain in and around the 8 bigha plot. He identified the accused.
30. P.W. 10, Sona Ghosh deposed on the fateful day around 1:00
p.m. he got down at Kamduni More and was proceeding towards his
home. Near 8 bigha boundary he saw Ansar, Saiful, Emamul and
Bhutto in front of Ala Room of Ansar. Bhola and Gopal were also
standing there. They were in drunken condition. In the evening he came
to know the victim was missing. He went to the 8 bigha plot and joined
the search. He saw Ansar, Saiful, Emamul, Bhutto were standing along
with Gopal and Bhola discussing something. On seeing him, they
stopped talking. On their insistence Ansar opened the gate. The dead
body was found behind the boundary wall in semi naked condition. 2-3
days after the incident investigating officer came to the spot and seized
broken door, broken wood pieces from the room in his presence. He
signed on the seizure list. He identified the broken door and wood piece
with hatch bolt. Police also seized controlled earth and grass from the
spot. He signed on the seizure list.
31. P.W. 11, Yazuddin Mollah is a local grocery shop owner. He
stated that on 7th June, 2013 Ansar had purchased groceries from his
shop.
iii) Witnesses regarding ownership and control of 8 bigha
plot:-
32. P.W. 18, Nirmal Kumar Mondal is an employee of the trust
which owns the 8 bigha plot. He deposed that the trust had purchased
the plot in 2008. A boundary wall was constructed around the plot.
There was an entry gate on the boundary wall. There were three rooms
inside the plot. Construction of the wall was done by one Rahan Ali
Mallick @ Jhantu, (P.W. 20). Security guards were posted but local
miscreants threatened them and forced them to leave. Key of the gate
was with Jhantu. Later he informed Ansar had taken the key from him.
Written complaint had been lodged in November, 2010 with regard to
the threat held out to the security guards.
33. P.W. 20, Rahan Ali Mallick @ Jhantu corroborated P.W. 18
and stated that Ansar had taken the key of the gate of the plot from
him. He had informed the trustees with regard to such incident.
iv) Witnesses to the conspiracy:-
34. P.Ws. 14 and 15 deposed on 2/3rd June, 2013 they had gone
to a tea stall near Langalpota. They heard accused were discussing
about the womenfolk of Kamduni not giving attention to them. Ansar
said that the daughter of P.W. 13 scoffed at them. Saiful said that she
would be taken inside the 8 bigha plot and taught a lesson at the right
time.
35. P.W. 14 stated that he was a distant relation of P.W. 13. He
further stated that he had gone out for work and met the police on 8 th
July, 2013. He admitted that he had been arrested in a criminal case
earlier.
36. P.W. 15 also admitted that he and P.W. 14 had been arrested
in various cases earlier. They had seen the news on television and
reported the matter to the police.
v) Medical witnesses:-
37. P.W. 23, Dr. Abhijit Ghosal is the member of the medical
board which conducted post mortem examination of the victim on
08.06.2013. Froth was coming out from right nostril. He found evidence
of sand and mud stains on all four limbs and other parts of the body.
Few pieces of grass were found, recovered and preserved from scalp hair
and medial aspect of upper part of left thigh. Mud present in scalp hair
was also recovered and preserved. He found the following injuries:-
"Bluish discoloration of lips, tongue, nail beds of all extremities
found. Evidence of ant bite marks ranging from (1/4" X 1/4") to
(1/2" X 1/4") found on different parts of all four limbs without any
signs of vital reaction and hence post mortem in nature.
INJURIES: 1) Bruise 1/2" X 1/4" on the inner aspect of the upper
lip 1/2" to the right of anterior midline.
2) Bruise 1/2" X 1/4" on the inner aspect of the lower lip 1/2" to
the right of anterior midline.
3) Contused lacerated wound 1/2" X 1/4" into vaginal tissues at 5
o' clock and 6 o' clock position at posterior vaginal wall along with
evidence of tear of posterior fouchette.
4) Contused lacerated wound 2" X 1/2" into the vaginal tissue on
upper part of left side of vagina extending up to the vault.
ON DISSECTION: 1) Extravasation of blood 5" X 3" involving right
front to- parieto- temporal region of scalp.
2) Extravasion of blood 2" X 1" on right parieto -occipital region of
scalp.
3) Extravasion of blood 2" X 1" on the left parieto-occipital region of
scalp."
38. He opined death was due to smothering, ante-mortem and
homicidal in nature. There were also features of sexual assault. He
further opined congestion in organs may have been caused by severe
asphyxia. Bruises on upper and lower lip can be caused by force on the
mouth. He proved post mortem report (Exhibit 15). He deposed that the
pubic hair of the victim was plucked by forceps. He also examined
accused Ansar Ali and Rafiqul Islam Gazi. He found nail scratch
abrasions on left anterior chest wall, a pair of continued nail scratch
abrasion on the left arm below the shoulder joint and above right elbow
joint on the right forearm of Ansar Ali. All the injuries showed features
of vital reaction. He proved the report (Exhibit 14).
39. P.W. 24, Dr. Supriti Ghoroi was also a member of the Board
who conducted post mortem examination. She examined the other
accused. She found scratch abrasions on the left arm of Amin Ali.
vi) Forensic experts:-
40. P.W. 26, Sipra Ray, Assistant Director, Biology Division, FSL
conducted forensic examination of the seized items. She detected traces
of semen on A3 (pubic hair), A12 (jangia), A13 (salwar). She detected
blood on the following items:-
"Ala(Dark brown stains on the paper) , Alb(scalp hair), Alc(nail
cuttings), A2(foreign bodies/ mud, hair, grass), A3(pubic hair),
A4(dark brown liquid contained in the glass bottle), A5(Dried
grass), A6(Kamiz, ganji-tape, cloth piece, gamcha), A7(earth and
died gas), A8(Earth and dried grass), A9(T-shirt, lungi), A10(Ganji,
lungi, jangia), A11( Tshirt, A12( Jangia), A13(Salwar), A14(Hatch-
bolt and wooden panel), A15(wooden panel/wooden shutter),
A16(Wooden panel/wooden shutter)."
She proved the FSL report marked as Exhibit 30.
41. P.W. 27, Gopeswar Mukherjee collected blood samples from
the appellants including Saiful for CFSL examination.
42. P.W. 25, Dr. Anil Kumar Sharma, Deputy Director, Biology
and CFSL at Calcutta deposed he received samples for FSL examination
and DNA analysis. He detected human blood on the lungi worn by
Saiful and wooden panel seized from the place of occurrence and
adherent material on the scalp hair of the deceased. Human semen was
detected on the pubic hair of the deceased. DNA profile of the blood
sample found on the lungi and the semen found on the pubic hair
matched with DNA profile of Saiful.
43. P.W. 30, Dr. Chitrakshya Sarkar, Senior Scientific Officer,
State Forensic Laboratory, Physical Division analysed the sample
containing soil particles and opined the dry soil along with dry grass
collected from the scalp hair of the deceased that is 'A2' matched with
the dry soil with dry grass collected at the place of occurrence 'A17'.
vii) Judicial confession of Saiful and Bhola:-
44. P.W. 19 is the Judicial Magistrate. On 18.06.2013, she
remanded Saiful to judicial custody for segregation and reflection. On
19.06.2013, he was again produced before her. She recorded his
confession (Exhibit - 7). On the same day, she recorded the statement
of Bhola Nasker (Exhibit - 8).
viii) Police witnesses:-
45. P.W. 21, ASI Biswanath Kar was posted at Barasat P.S. He
drew up the formal FIR upon receipt of written complaint from P.W. 2.
46. P.W. 22, SI Rakesh Chatterjee was posted at Barasat Police
Station. On 08.06.2013 he held inquest over the body of the deceased at
Barasat District Hospital (Exhibit 4/2). After post mortem the doctor
handed over sealed packets and jars to him. He handed over the said
items to SI Soumen Pal, the first investigating officer. He proved his
signature on the seizure list (Exhibit 11).
47. P.W. 29, SI Soumen Pal deposed on 07.06.2013 he received a
phone call that an unknown female body was found at Kamduni More.
Reaching Kamduni More he was obstructed by an unruly mob. He
informed his superior and called for further force. He found the body
inside 8 bigha boundary land covered with dry grass and marsh. Body
was in semi naked condition. A photographer (P.W.17) was summoned.
He took photographs of the dead body. Thereafter, the body was carried
in an ambulance driven by P.W. 28 to Barasat Hospital. P.W. 29 entered
the 8 bigha plot. He found three rooms inside the plot. He seized
various articles of the deceased including original admit card, student
ID card kept inside a black coloured school bag from the spot. He also
seized blood stained earth with grass, salwar and a ladies
undergarment from the place of occurrence. He arrested Ansar, Amin
Ali and Nuro and brought them to Barasat Police Station. Subsequently,
he arrested Saiful, Bhola and Gopal as their names transpired in the
course of investigation. He seized biological samples handed over by the
post mortem doctor from P.W. 22. Upon the investigation being
transferred to Detective Department, the same was handed over to P.W.
31, Anandamay Chattopadhyay, DDI Barasat.
48. P.W. 31 took up the investigation on 09.06.2013. Thereafter,
he arrested Emamul and Aminur Islam @ Bhutto. On 14.06.2013 Saiful
confessed his guilt. On his showing, his blood stained lungi was seized.
On 18.06.2013 Saiful and Bhola were produced before Magistrate for
recording confessional statement. Learned Magistrate (P.W. 19)
remanded them for segregation and reflection. On the next day, P.W. 19
recorded the judicial confession of Saiful (Exhibit 7). Bhola made an
exculpatory statement (Exhibit 8). In the meantime, FSL expert
inspected the spot. P.W. 26, FSL expert (Dr. Shipra Roy) pointed out
some blood stains on the wooden shutter of the middle room. Parts of
the shutter and controlled earth were seized for FSL examination.
Seized samples were sent for examination at FSL, Kolkata. Blood
samples of the appellants for DNA profiling were also collected. He
forwarded the blood samples and other articles for examination and
DNA analysis to CFSL. He examined witnesses and submitted charge-
sheet against Ansar, Saiful, Emamul, Aminur Islam, Gopal and Bhola.
On 06.07.2013 he affixed notices in Kamduni area requesting people to
disclose fact regarding the incident. On 07.07.2013 notices were
published in newspaper. On 08.07.2013 he examined Somnath Ghosh
(P.W. 14) and Md. Sariful Islam (P.W. 15). Complicity of Amin Ali, Noor
Ali, Rafiqul Gazi conspired from their statements. He submitted
supplementary charge sheet on 10.07.2013 against them. Upon cross-
examination, he clarified SI Apurba Mondal had gone to the Court on
19.06.2013 only for the purpose of identifying the confessing accused.
B.(b) Defence witnesses:-
49. Some of the appellants took plea of alibi. Amin Ali claimed
that he had gone for work in marble shop on the day of occurrence. He
examined Md. Samsulla Morol, a co-worker as D.W. 1 to probabilise his
defence. During his examination under section 313 Cr.P.C. he claimed
that the injuries on his body had occurred in the course of his work in
the marble shop.
50. Emamul Islam examined his son Sk Alimul (D.W. 8) and a
mason Abdul Hai (D.W. 9) to prove that construction work was being
undertaken at his house on 6th and 7th June, 2013.
51. Aminur Islam @ Bhutto examined his sister-in-law Saida Bibi
(D.W. 10) who deposed that the said accused had come to her residence
on 07.06.2013 around 11.30 a.m. Thereafter, they went out to purchase
ornaments for her child and returned around 12:30 p.m. Aminur had
lunch in her house and left her house around 06:30/ 7:00 p.m.
52. Ansar Ali examined Ashad Ali Mollah, his brother (D.W. 13) to
establish his alibi. He also examined D.Ws. 11 and 12, reporter and
staff photographer of "Ei Samay Sangbad Patra" in support of his case.
During his examination under section 313 Cr.P.C., he stated that he
had been physically assaulted in police custody not knowing how the
injuries occurred.
53. The acquitted accused, namely, Noor Ali and Rafiqul also
examined witnesses to establish their alibi.
54. Noor Ali examined D.Ws. 2, 3, 4 and 5 to prove that he was
employed at a meat shop on the day of occurrence. He examined Safikul
Islam, owner of the meat shop and an employee Atiar Rahaman as
D.Ws. 2 and 3 in support of his plea. His wife Azmira Bibi (D.W. 4)
deposed around 2:30/2:45 p.m. their daughter had fallen ill and was
taken by them to a doctor (D.W. 5). Dr. Subir Halder (D.W. 5) deposed
he had examined one M. Sultana on 07.06.2013 in the morning session.
55. Rafiqul Islam examined one Ohidul Sha (D.W. 7) who claimed
that Rafiqul worked in his house as a mason on the fateful day. D.W. 6,
Mekail Mallick corroborated his statement.
C. Rape and murder of the victim:-
56. It is the prosecution case that on 07.06.2013 between 2:30-
7:30 p.m., the victim was raped and murdered. P.W. 23, Dr. Abhijit
Ghosal was a member of the medical board, who conducted post
mortem over the body of the victim. He found frothing at the nostril of
the victim. He noticed traces of sand, mud stains and pieces of grass on
the limbs, scalp hair and other parts of the body. He noted the following
injuries:-
"Bluish discoloration of lips, tongue, nail beds of all extremities
found. Evidence of ant bite marks ranging from (1/4" X 1/4") to
(1/2" X 1/4") found on different parts of all four limbs without any
signs of vital reaction and hence post mortem in nature.
INJURIES: 1) Bruise 1/2" X 1/4" on the inner aspect of the upper
lip 1/2" to the right of anterior midline.
2) Bruise 1/2" X 1/4" on the inner aspect of the lower lip 1/2" to
the right of anterior midline.
3) Contused lacerated wound 1/2" X 1/4" into vaginal tissues at 5
o' clock and 6 o' clock position at posterior vaginal wall along with
evidence of tear of posterior fouchette.
4) Contused lacerated wound 2" X 1/2" into the vaginal tissue on
upper part of left side of vagina extending up to the vault.
ON DISSECTION: 1) Extravasation of blood 5" X 3" involving right
front to- parieto- temporal region of scalp.
2) Extravasion of blood 2" X 1" on right parieto -occipital region of
scalp.
3) Extravasion of blood 2" X 1" on the left parieto-occipital region of
scalp."
He stated congested organs may be caused due to severe asphyxia.
Bruise on upper and lower lips may be caused by force on mouth. He
opined death was due to smothering, ante-mortem and homicidal in
nature. He also opined victim had been subjected to sexual assault. The
aforesaid evidence leaves no doubt in one's mind that the victim had
been raped and murdered.
D. Place of occurrence:-
57. Prosecution has sought to establish the place of occurrence on
the basis of the confession of Saiful Ali and other evidence on record.
P.W. 6, Pratap Ghosh was a member of the search party. He deposed
they had entered the 8 Bigha plot to search the victim. Victim was not
found inside the plot. He then started searching the ground behind the
boundary wall. When he reached behind the boundary wall, he noticed
the semi naked body of the victim at the end of the boundary wall. He
cried out loudly. Others including father of the victim, P.W. 13 came to
the spot and identified the victim at the end of the boundary wall. P.Ws.
1, 2, 3, 4, 5, 7, 9, 10 and 13 were present and have corroborated P.W. 6
with regard to the recovery of the dead body. Police was informed and
came to the spot. P.W. 29, SI Soumen Pal was the first investigating
officer, who came to the spot and found the body. P.W. 17, Md. Ariful
Islam, a photographer took photographs of the body of the victim.
Thereafter, the body was removed in an ambulance driven by P.W. 28,
Babla Mitra. P.W. 22, Rakesh Chatterjee conducted inquest over the
dead body at Barasat Hospital.
58. In the course of investigation, P.W. 29 prepared rough sketch
map of the place of occurrence, i.e., 8 Bigha plot and the adjoining dry
land behind the boundary where dead body was found. Perusal of the
sketch map shows that the dry land where the body was recovered is
behind the boundary wall and is surrounded by water bodies on all
sides. There is a small hole on the rear side of the boundary wall in the
south west corner. The said dry land can be accessed through the said
hole in the boundary wall by wading through the water bodies and not
otherwise.
59. Mr. Dastoor argued that the place of recovery of the body has
not been proved. He referred to a stray observation in the deposition of
P.W. 10 who stated body was found lying at a distance of little less than
half kilometre from 8 bigha plot to substantiate his submission. P.W. 29
stated that the body was lying 50 meters away from the gate of 8 bigha
plot. He is an experienced police officer whose estimation regarding
distance must be given credence over the vague assumption of a local
villager, namely, Sona Ghosh (P.W. 10). Moreover, estimate regarding
distance by P.W. 29 and his sketch map corroborates the deposition of
P.W. 6 who had discovered the body. Evidence with regard to the
topography of the area including the sketch map prepared by P.W. 29
clearly shows that the pipe factory and construction factory are situated
on the opposite side of the road from the spot 8 Bigha plot. North Point
School is also situated at a considerable distance. The topography
clearly establishes that there was little or no possibility of the body of
the victim being kept on the dry land behind the boundary wall of 8
Bigha plot save and except traversing through the hole in the south
west corner of the boundary wall and wading through the water body
adjacent thereto.
60. Evidence on record further shows there were three rooms
inside the 8 bigha plot. Second investigating officer (P.W. 31) deposed
forensic experts visited the spot and identified blood stains on the
shutter of the door in one of the rooms. P.W. 31 removed a part of the
shutter. He also collected grass and mud from the place where the body
was recovered. Report of CFSL expert, Dr. Anil Kumar Sharma (P.W. 25)
(Exhibit - 29a) shows presence of human blood on the shutter (A 16).
P.W. 23, Dr. Abhijit Ghosal, post mortem doctor found mud and grass
on the scalp hair of the victim. He collected and preserved the samples
marked as A2. P.W. 30, Chitrakshya Sarkar, senior scientific expert of
State Forensic Laboratory deposed the mud and grass found from the
place of occurrence (A17) matched with that found on the scalp hair of
the victim. These pieces of evidence support the prosecution case that
the victim had been raped in the rooms inside the 8 Bigha plot and her
body had been removed through the hole in the south west corner of the
boundary wall and dumped on the high ground behind the boundary
wall. Confession of Saiful Ali corroborates the aforesaid circumstances
and proves the place of occurrence beyond doubt.
E. Time of occurrence:-
61. P.Ws. 1 and 12 stated that the victim had left her residence
and gone towards Kamduni More to board a bus to go to Derozio
College. She was to take an examination in the college. P.W. 1 had
accompanied the victim in the morning to Kamduni More. He was to
escort the victim back from Kamduni More in the afternoon. Around
2:00 p.m. he proceeded towards Kamduni More but was delayed due to
rains. When he reached Kamduni More, his uncle Bimal Ghosh, a
vendor of sattu, stated that the victim had proceeded towards her
residence. P.W. 1 returned home but found the victim had not returned.
He again proceeded towards Kamduni More but could not trace the
victim. As the victim had not returned, they informed the relations and
friends. A search ensued. Finally in the evening around 7:30 p.m. P.W.
6 found the semi naked body of the victim lying on a dry ground behind
the boundary wall of 8 Bigha plot.
62. Evidence of P.Ws. 1 and 12 show that the victim had been
escorted to Kamduni More in the morning of 07.06.2013 and had left
for her college to take an examination. Learned Counsels for the
appellants argue no one was examined from the college to show that the
victim had actually taken an examination. I find little substance in such
submission. P.W. 1 deposed he had accompanied the victim to Kamduni
More wherefrom she left for the college. He explained that this was a
common practice as the victim and other womenfolk were regularly
teased by the appellants when they crossed 8 Bigha plot. His version is
corroborated by the mother of the victim, P.W. 12. Their deposition
remained unshaken inspite of extensive cross-examination. Thereafter,
victim went missing. Her dead body in semi naked condition was
recovered in the evening from behind the 8 Bigha plot.
63. After the recovery of the dead body, P.W. 29, first investigating
officer seized various articles from the spot, namely, one black coloured
school bag on which ADIDAS was written, with belt for carrying on the
back, one original Admit Card of the victim having roll number written
as 213211712903 of Part - II examination of 2013 issued by West
Bengal State University, one original students I.D. card of Derozio
Memorial College in the name of the victim having student I.D. card No.
10012011723, one ID card in the name of the victim of the sessions
2011 to 2012 of State of West Bengal University, one student
concession card issued by North Eastern Bus Syndicate for route No.
211/211A in the name of the victim, one torn piece of student fee card
issued by Derozio Memorial College in her name, one Additional Bengali
Parikrama Book, second paper by Professor M. Chowdhury and one
wooden clip board. These articles clearly indicate the fact that the
victim had gone to the college for the purpose of taking the examination
and corroborate the version of P.Ws. 1 and 12.
64. Deposition of other witnesses shows it had rained
intermittently in Kamduni area on that day. These circumstances
establish the fact that on the fateful day, i.e. 07.06.2013 the victim
being escorted by P.W. 1 had gone to Kamduni More and proceeded to
take the examination. Thereafter, she went missing and finally her body
was recovered from a spot behind the 8 Bigha plot. Recovery of her
belongings corroborates the prosecution case that she had gone to
college to take the examination.
65. In this backdrop, non-examination of any witness from the
college does not affect the unfolding of the prosecution case. On the
other hand, these circumstances stand squarely corroborated by the
confession of Saiful Ali with regard to the time when the victim was
raped and murdered. Hence, the time of occurrence is established
beyond doubt.
F. Perpetrators of crime:-
F.(a) Role of Saiful in the crime:-
(i) Judicial confession:-
66. Prosecution has primarily relied on the judicial confession of
Saiful Ali to prove his guilt. P.W. 29, first investigating officer deposed
complicity of Saiful transpired during investigation. He was arrested on
08.06.2013. He was remanded to police custody till 18.06.2013. On
14.06.2013 he made confessional statement to police. Pursuant thereto
on 18.06.2013 he was produced before the Magistrate who remanded
him to judicial custody for segregation and reflection. On 19.06.2013 he
was again produced before the said Magistrate, P.W. 19. She put
questions to him to test the voluntariness of his statement. Being
satisfied she recorded his confession. Saiful stated as follows:-
"At about 08:00 a.m. I left my home and went to 'Kamduni More' in
search of job. As nobody came, there (for job), so I went to the 'Ala' (sic)
house of Ansar. I was already familiar with Ansar as he used to provide
jobs in his fishery. 'Ansar Bhai' told me that there was a job for me, but
he wouldn't pay money for that, instead he would give me food for that
day. I was there alongwith Gopal, Emamul, Ansar, Bhutto and Bhola.
Bhola joined (us) later. Other people were with me since morning when I
went to Kamduni More'.
Ansar asked me whether I will consume liquor or not. I told that I
will consume a little amount or may not consume, let them bring (it) first.
Emamul gave Gopal Rs. 110 (One Hundred Ten Rupees) and at about
11:30 a.m. Gopal brought 'Bangla Mal' (country spirit) from Rajarhat. I,
Gopal and Emamul jointly consumed the liquor. I took 1 glass of liquor,
they consumed more. Later Bhutto came and consumed (liquor). Then I
and Gopal were cleaning the hyacinth from Ansar's 'Bheri' (large water
body). Later I and Gopal went to 'Alagher'. Then Anser told that Gopal
will knot the hyacinth and asked me to place the 'Basna' ( a dried bark or
spathe of the bananas and other plants) in the 'Bheri' (an embanked low
land used as a fishery). After the job was over, we all ate meat & rice
prepared by Ansar. After having food at 'Alaghor', at about 02:30 p.m.
Gopal and Bhola went home and 5 min. later Bhutto, Ansar and Enarul
also left riding the bike of Ansar. Then I alone lay down in that 'Alaghor'.
After 10-15 minutes I had a feeling of nausea. I woke up and saw that
the said girl was going along the road. Then, with what intention I don't
know I followed the girl with the keys of the boundary and at about 5 feet
distance from the entrance of the gate I hold her hand and dragged that
girl in front of the gate. When she started shouting I pushed her and she
became senseless after she fell down. Then I picked her up in my lap and
took her inside the gate and laid her down on the floor. Then I went to
lock the door and she gained her consciousness and started screaming, I
gagged her mouth and removed her pyjamas from her lower part of the
body and then outraged her modesty. As she was not speaking any
words. So I went towards the gate and waited beside the gate for 20
minutes. When I went towards her again, she started screaming. So I
pressed her cheeks. Then she became lifeless. So I understand that due
to pressing her mouth & nose by me she died. Accused shows with his
hands pressed on his cheeks and nose together, to indicate how he held
the victim girl).
Then I picked her up in my lap and went outwards. But I fell down
inside the boundary. Then I saw that blood was coming out from her
forehead. Later, from a gap present in the corner of the boundary I
dragged her through the water holding her hand and placed her upon a
'Danga' (high land) and after wading through waist deep water reached
the road. Seeing nobody there, I ran towards the gate and entered there.
I was completely naked till that time. Then I hurriedly wore my 'Lungi' (a
loin cloth worn by men). Later I reached 'Alaghor' walking along the road.
Then I lay down (over there). At about 04:30 p.m. Ansar came and woke
me up. He asked me to bring tea. I went to 'Kamduni More' for tea and
then we two took the tea. Then I went to that tea stall. 10 minutes later I
saw that Emamul and Bhutto were coming riding a bike. So I again went
towards 'Alaghor'. Emamul and Bhutto sat down upon the empty place
(beside) the road. When Bhutto went to pass urine, I told about
everything to Emamul. I told him that I had committed a mistake and
(due to that) the girl died and I threw away the dead body outside of the
boundary. Emamul told me that after talking with Ansar he will inform
me. Emamul went to discuss with Ansar and after 20 minutes he came
back and told me that I have nothing to worry about and the fate of the
dead body will be decided after dusk. At about 06:30 p.m. the family
members of the girl found her (dead) body. I was present there. I was
frightened and Ansar asked me to go home. So I went to home."
61. Thereafter, Saiful was remanded to judicial custody. On
12.07.2013 he retracted his statement claiming that the statement was
procured through torture. Learned defence counsel has assailed the
judicial confession on various grounds. Firstly, it was contended Saiful
did not have the assistance of a lawyer at the time he made the
confession. Subsequently, he was provided legal assistance. Upon being
made aware of his rights, he promptly retracted the confession on
12.07.2013.
62. Secondly, it was argued even during segregation Saiful was
under the influence of police. P.W. 31, second investigating officer
admitted on 18.06.2013 at 3:00 p.m. Saiful and others had been taken
out for drawing blood samples at Barasat Hospital. P.W. 19, Judicial
Magistrate who recorded confession stated Saiful was produced by SI
Apurba Mondal. SI Apurba Mondal was actively involved in collection of
blood samples and seizure of various articles during investigation. His
presence prior to recording confession casts severe doubt with regard to
its voluntariness.
63. Thirdly, it was contended the Magistrate mechanically put
questions to Saiful and no real effort was made to find out why he
intended to make the confession or whether the same was procured
through coercion.
64. Fourthly, it was argued on 14.06.2013 lungi of Saiful was
seized. Forensic report shows presence of blood on the lungi. This
probabilises physical assault on Saiful during police custody.
65. Finally, it was argued that the confession was not truthful and
is inconsistent with the prosecution case of gang rape. It is not
supported by other circumstances.
66. With regard to the issue of absence of legal representation of
Saiful at the time of recording confession, it may be profitable to refer to
the ratio in Mohammed Ajmal Mohammad Amir Kasab alias Abu Mujahid
vs. State of Maharashtra1. In the said report, the Apex Court, inter alia,
held though right to a lawyer of one's own choice is a fundamental right
under Article 22 of the Constitution, absence of legal representation per
se would not render a confession inadmissible. The ratio to arrive at
such conclusion was drawn from the scheme of the Code of Criminal
Procedure which entrusts the duty upon a judicial officer to satisfy
(2012) 9 SCC 1
himself with regard to the voluntariness of a confession by putting
questions to the accused and prior to recording the same. The
satisfaction of the judicial officer is an immunity against the vice of
involuntariness and coercion on an accused who makes the confession.
This safeguard is of a high order and guarantees the voluntariness of a
confession coming from an accused who may not have legal
representation at the material point of time. Reference may be made to
the observations of the Apex Court in Kasab (supra) is as follows:-
"467. The object of the criminal law process is to find out the
truth and not to shield the accused from the consequences of his
wrongdoing. A defence lawyer has to conduct the trial on the basis
of the materials lawfully collected in the course of investigation.
The test to judge the constitutional and legal acceptability of a
confession recorded under Section 164 CrPC is not whether the
accused would have made the statement had he been sufficiently
scared by the lawyer regarding the consequences of the
confession. The true test is whether or not the confession is
voluntary. If a doubt is created regarding the voluntariness of the
confession, notwithstanding the safeguards stipulated in Section
164 it has to be trashed; but if a confession is established as
voluntary it must be taken into account, not only constitutionally
and legally but also morally."
67. No doubt in such cases a heavy duty is put on the Magistrate
who records the confession. It is his duty to put questions to the
accused and satisfy himself with regard to the voluntariness of the
confession. This Court has carefully gone through the evidence of P.W.
19, Judicial Magistrate who recorded the confession. On 18.06.2013,
Saiful was produced before the Magistrate. She remanded him for
segregation in judicial custody. On the next day she put questions to
Saiful to satisfy herself whether he had been subjected to tutoring,
intimidation or inducement to make the confession. She also informed
the accused that he was not bound to make the confessional statement
and if he made it, the same would be used against him. She assured the
accused that he shall not be remanded to police custody if he did not
make the confession. The manner of enquiry undertaken by P.W. 19
clearly shows that she had made all efforts to ensure that the accused
was kept in segregation and that he had not been subjected to coercion,
inducement or tutoring to make the confession. She had also assured
the accused that he was not required to make the statement, which if
made would be used against him and in the event he made the
statement he would not be remanded to police custody. This shows that
the Magistrate had undertaken necessary enquiries and, thereafter,
recorded her satisfaction with regard to the voluntariness of the
confessional statement.
68. It is also argued that the Magistrate had not enquired of Saiful
why he was making the statement. Hence, the statement cannot be said
to be voluntary. P.W. 19 had put a number of questions to Saiful to test
the voluntariness of his confession. Purpose of enquiry why an accused
is making the statement is to lend credence to his voluntariness. This
can be discerned not only from the question put by the Magistrate but
on a wholesome reading of the confessional statement itself. Perusal of
the confession shows that on the day of the incident Saiful and other
appellants were merry making in the Alaghor. Thereafter, according to
him, the others left. At that time, he saw the victim walking down the
road. He stated 'something happened in his mind' and he followed the
victim, dragged her inside the 8 bigha plot and raped and murdered
her. The tenor of the confessional statement and the reference to an
impromptu act of indiscretion leads to the irresistible inference of
remorse which had prompted him to make the statement. The manner
and circumstances in which Saiful committed the crime shows a
sudden lapse of discretion and impulsiveness on his part which in all
probability bore heavily on his mind and prompted him to confess.
69. Confession has also been seriously assailed on the ground
that there was police surveillance on Saiful during segregation. On
18.06.2013 Saiful was produced before the Magistrate and remanded to
segregation. As per P.W. 31, at 3:00 p.m. on that day he had been taken
to Barasat Hospital to draw blood samples. Thereafter, he was in
judicial custody till produced before the Magistrate. This exercise by
itself cannot be a ground to hold that Saiful had not been in segregation
from 3:00 p.m. on 18.06.2013 till he made the confession on the next
day. To rebut this contention, it is argued that SI Apurba Mondal had
produced Saiful at the time of recording confession. He had played role
in seizure of articles and drawing of biological samples during
investigation and his presence had impacted the voluntariness of the
confession. I am unable to subscribe to such theory. Investigation
officer, P.W. 31 clarified the role of SI Apurba Mondal. He stated that
the accused had been produced before Court from judicial custody. SI
Apurba Mondal was present in Court when he was produced and
identified the accused before the Magistrate. Identification of an
accused by a police officer before a Magistrate prior to recording of
judicial confession is a routine act. This would not lead to any inference
of inducement on the accused. I am persuaded to come to such
conclusion as the Magistrate herself during deposition succinctly stated
that she had put questions to the accused with regard to any threat or
inducement coming from police and had clarified no police officer was
present during recording the statement. It is also relevant to note that
the Magistrate had assured the accused that he would not be put in
custody of police if he did not make the confession. These safeguards
and assurances by the Magistrate clearly rule out the possibility of
influence on the accused during segregation or at the time of making
the confession.
70. Finally the tenor of the confession is not wholly in consonance
with the prosecution case. While Saiful claimed that he had committed
the crime himself, the prosecution case is one of gang rape. Had Saiful
been tutored to make a confession to fit the prosecution case he would
not have in all probability come out with a statement which is wholly
self-inculpatory and exculpatory qua others. The substance and tenor of
the confession clearly militates against the defence version of a tailor
made confession procured through tutoring, coercion or inducement.
71. On 12.07.2013 Saiful retracted his confession. This belated
retraction appears to be an afterthought prompted through legal advice.
On none of the dates before or at the time of recording of his confession
did Saiful complain to the Magistrate that he was subjected to physical
assault in police custody. He categorically responded that he had not
been coerced or induced by police to make the confession. Even during
his examination under section 313 Cr.P.C. while mechanically
retracting his confession, Saiful was silent with regard to physical
assault on him in police custody. These circumstances wholly
improbabilise the belated retraction. It also rules out the possibility of
physical assault on Saiful in police custody which would justify the
presence of blood on his wearing apparels. Voluntariness of the
confession is clearly established.
(ii) Truthfulness of confession - inculpatory part
corroborated:-
72. Inculpatory part of his confession is corroborated by
circumstantial evidence. P.W. 23, post mortem doctor deposed the
victim died due to ante mortem smothering. He found bruises on the
nose and lips of the victim which were due to force. These findings of
the medical officer corroborate the manner and circumstance in which
the victim was murdered after being raped as per the confession.
Forensic report shows the presence of grass and mud collected from the
spot on the hair of the victim. This also corresponds to the manner in
which the body was kept on the high ground behind the 8 Bigha plot.
73. P.W. 10 saw Saiful and other appellants in an inebriated
condition in front of Alaghor around 1:00 p.m. After the occurrence,
P.W. 1 saw Saiful with Ansar while the latter was locking the door of 8
bigha plot, Saiful was telling Ansar they had a great time and should go
home. During search P.W. 9 saw the appellants along with Saiful
talking to each other and pointing to a spot behind the boundary wall to
Gopal. P.W. 10 saw they were talking and then became silent as soon as
he approached them. Versions of these witnesses also corroborate the
post- occurrence circumstances as coming out from the confession.
Inculpatory aspects of the confession of Saiful are wholly corroborated
by the aforesaid circumstances and clearly lend credence to its
truthfulness.
74. In Rabindra Kumar Pal alias Dara Singh vs. Republic of India2
the Court declined to rely on the confession under the following
circumstances:-
"67. It is seen from the evidence of PW 29, who recorded the
confession of Rabi Soren, that at the relevant time the accused
was in the custody of CBI and from that custody he was produced
before the Additional Chief Judicial Magistrate on 18-5-1999.
Though PW 29 had asked the accused many things about the
voluntariness, the High Court, on analysis of his entire evidence,
came to a conclusion that only a routine statutory certificate as
required under Section 164 CrPC was given by him. The High
Court also pointed out that he did not caution that if the accused
Rabi Soren refused to make any confession, he would not be
remanded to CBI or police custody. He was not informed that if he
confessed, such confession may be used in evidence against him
and on that basis there was the possibility of his being sentenced
to death or life imprisonment. It was also pointed out that his body
was not checked to find out as to whether he was subjected to
torture when he was in police custody. It was also pointed out by
the High Court that five hours' time was given for reflection during
which period he was in the custody of his Bench Clerk in his
chamber. PW 29, after recording the confessional statement of
Rabi Soren on 18-5-1999, again remanded him to the custody of
police i.e. CBI till 20-5-1999. This is clear from the evidence of PW
55 (IO)."
(2011) 2 SCC 490
Present case is clearly distinguishable. Appellant had been remanded to
judicial custody and it appears since 3:00 p.m. of 18.06.2013 he
remained in judicial custody till he made the confession on the next
day. Accused was produced from judicial custody and Magistrate had
assured him that he shall not be remanded to police custody if he did
not make the confession. The substance and tenor of the confession
also rules out a case of tutoring.
75. In Parmananda Pegu vs. State of Assam3 it was held that the
Court must look for corroboration before relying on a retracted
confession. The Court held as follows:-
"19. In order to be assured of the truth of confession, this
Court, in a series of decisions, has evolved a rule of prudence that
the court should look to corroboration from other evidence.
However, there need not be corroboration in respect of each and
every material particular. Broadly, there should be corroboration
so that the confession taken as a whole fits into the facts proved
by other evidence. In substance, the court should have assurance
from all angles that the retracted confession was, in fact,
voluntary and it must have been true."
In the present case, medical evidence and other circumstances clearly
corroborate the truthfulness of the retracted confession unlike the cited
case where the medical evidence contradicted the confession itself.
76. In Sarwan Singh vs. State of Punjab4 the Apex Court, inter
alia, held it would be reasonable to give an accused at least 24 hours to
decide whether or not he should make a confession. In Babubhai
Udesinh Parmar vs. State of Gujarat5 only 15 minutes was given to the
(2004) 7 SCC 779
AIR 1957 SCR 953
(2006) 12 SCC 268
accused prior to recording of confession. In the present case the
accused had been sent for segregation on 18.06.2013 and his
confession was recorded on the next day. Fact that the accused had
been taken out for drawing of blood at 3:00 p.m. on 18.06.2013 cannot
be a ground to hold that substantial time for reflection had not been
given to him. Even if the segregation period is calculated from the time
when the appellant was taken out to collect the blood, the confession
was recorded on the next day at 02:30 p.m., that is, after expiry of
sufficient period for reflection of almost 24 hours.
77. Davendra Prasad Tiwari vs. State of U.P.6 is also
distinguishable on facts. In the present case, the Magistrate had
assured the accused that he would not be remanded to police lockup if
he did not make the confession. Reason for the appellant making the
confession is also evident from the tenor of his confession. In his
confession he stated that 'something got into him' and he committed the
crime. Naturally he felt remorse and confessed. Materials on record
show the appellant had been remanded to judicial custody and was sent
for reflection till the next day. Mere identification by a police officer prior
to recording of confession cannot be a ground to hold that the judicial
remand had not been followed in practice. Non-examination of SI
Apurba Mondal who identified Saiful before Magistrate also does not
affect the prosecution case. P.W. 31 during cross-examination clarified
the role of the said police officer. His examination is not necessary for
(1978) 4 SCC 474
unfolding of the prosecution case. However, it was open to the defence
to make a prayer before the trial Court to summon the said police officer
under section 311 Cr.P.C. if it thought fit and proper. The defence did
not take recourse to such action. Under such circumstances, it cannot
be argued that non-examination of the said police officer would lead to
an adverse inference against the prosecution case.
78. In Aloke Nath Dutta and Others vs. State of West Bengal7 the
retracted confession was not believed due to suspicious circumstances.
Though the jail premises was adjoining the Court, accused had been
brought out from jail two and half hours earlier. It was his specific
defence that he had been taken to police station and threatened. He
made prayers for production of records which was not allowed. No plea
was raised by Saiful during his examination under section 313 Cr.P.C.
that during segregation he had been threatened by SI Apurba Mondal or
any other police officer. No prayer had also been made to summon the
said SI Apurba Mondal under section 311 Cr.P.C. before the trial Court.
Role of the said police officer has been clarified by P.W. 31 as one who
had merely identified the accused before the Magistrate. This is a
routine practice. P.W. 19, Judicial Magistrate clarified no police officer
was present when she recorded the confession. Prior to recording the
confession she put questions to the confessing accused who did not
come up with any plea of threat or coercion during segregation or
(2007) 12 SCC 230
earlier. These facts clearly distinguish the present case from the
circumstances vitiating in Aloke Nath Dutta (supra).
(iii) DNA evidence:-
79. Prosecution has relied on the DNA profiling report (Exhibit
29a) to corroborate the judicial confession and other evidence against
Saiful.
80. P.W. 25, Dr. Anil Kumar Sharma is the Deputy Director. He
conducted serological and DNA examination on the following items:-
Samples in the first batch were: Vaginal and urethral swabs of
deceased (Exhibit A1), vaginal smear (Exhibit A2), Blood sample of
the deceased (Exhibit B), lungi (Exhibit S), blood sample of Saiful
(Exhibit T).
Samples received in second batch: blood samples of deceased
(Exhibit A1a), scalp hair of the deceased (Exhibit A1b), nail
clipping of deceased (Exhibit A1c), pubic hair (Exhibit A3), jangia
of deceased (Exhibit A12), salwar of deceased (Exhibit A13) and
wooden panels from the crime scene (Exhibits A14, A15 and A16).
81. As per his report, DNA in the semen stains found on pubic
hair, blood stains on the lungi (Exhibit S) and blood profile of Saiful
(Exhibit T) belonged to one and the same person. Relying on the report
prosecution argued Saiful had raped the victim. On the other hand, the
DNA report has been challenged by the defence on various scores.
(iii-a) Identity of pubic hair and chain of custody:-
82. Identity of the pubic hair is doubtful. No DNA examination
was undertaken to ascertain whether pubic hair on which semen stains
was found belonged to the victim. Post mortem doctor (P.W. 23) deposed
he had collected the hair by using forceps which would ensure that the
root hair was intact. However, the pubic hair received at FSL was root
end cut. Post mortem doctor also did not state he found semen stains
on the pubic hair. Hence, identity of the hair examined by CFSL expert
is doubtful.
83. It is also contended chain of custody has not been established.
The envelope containing the pubic hair was not sealed. As per seizure
list Exhibit - 11/1 the package is described as "one envelope containing
pubic hair of the deceased." In most of the other articles it is stated they
are either sealed or packed. FSL also notes the pubic hair was in an
unsealed envelope inside a sealed envelope containing seal of 'Barasat
District Hospital'. There is a difference in the seal borne on the post
mortem report and the sealed item. In the post mortem report the seal
reads "Autopsy Surgeon, North-24 Pgs. Dist. Hospital, BARASAT"
whereas the seal on other articles reads "Barasat District Hospital".
84. Post mortem doctor (P.W. 23) handed over the samples
including the pubic hair to P.W. 22. No seizure list was prepared and
after five hours P.W. 22 handed over the articles to the investigating
officer, P.W. 29. It is further argued there was a delay of 6 days in
sending items to FSL and CFSL.
85. With regard to the aforesaid objections, it may be noted post
mortem doctor (P.W. 23) deposed he had plucked the pubic hair with
forceps during autopsy. Defence argued if the pubic hair had been so
plucked it would have the root end attached to it. But the hair
examined at CFSL department was root end cut. Post mortem report
shows rigor mortis had set in. It is possible due to rigor mortis the hair
when plucked from the body had broken. Similarly, failure of post
mortem doctor to notice semen stains on clinical examination may be
due to small quantity of semen stains on the hair. Its presence was
noted both at the State Laboratory and at CFSL during microscopic
examination which would override the clinical findings of the post
mortem doctor.
86. Post mortem examination had continued for a considerable
period of time and thereafter, the articles including the pubic hair had
been handed over to P.W. 22 who in turn handed it over to P.W. 29. It is
common knowledge that investigation in our country proceeds at a
lethargic pace. There may have been some loss of time in collecting the
pubic hair and handing over the articles to the investigating officer,
P.W. 29. The time gap is not so stark so as to break the chain of
custody.
87. The samples had been seized on 08.06.2013. Upon transfer of
investigation to CID, Kolkata on 09.06.2013 second investigating officer
(P.W. 31) took custody of the samples including the pubic hair on
13.06.2013. Thereafter, the articles were promptly sent on 14.06.2013
to FSL and CFSL. The time gap between the seizure and the dispatch of
articles for forensic examination has been explained and there is no
undue delay which would adversely reflect on the forensic report.
88. It has been strenuously argued the pubic hair was kept in an
open envelope which does not rule out the possibility of substitution.
Evidence on record as well as CFSL report (Exhibit 29a) shows the
envelope containing the pubic hair and other forensic articles were put
inside a bigger envelope which was duly sealed with the stamp of the
hospital. Other articles also bore the same seal, namely, 'Barasat
District Hospital'. A different seal was affixed to the post mortem report,
namely, 'Autopsy Surgeon, North-24 Pgs. Dist. Hospital, BARASAT' as
the document was signed by him. These circumstances reinforce the
prosecution case that the big envelope was sealed with the seal of
'Barasat District Hospital' and there is no possibility of substitution by
the investigating agency. Chain of custody is therefore proved beyond
doubt.
(iii-b) Malkhana storage conditions:-
89. It is argued the storage conditions in the Malkhana were far
from conducive. Most of the samples were not fit for DNA profiling as
they were of "very low amount and were highly degraded". P.W. 25
admitted, passage of time, environment in which samples are kept,
packaged and preserved causes degradation. Hence, it is possible that
the samples were contaminated and degraded. Thus, forensic opinion is
highly unreliable.
90. P.W. 25 did not state that the DNA sample extracted from the
semen stains on the pubic hair was degraded. This obviates any doubt
with regard to the quality of DNA sample for the pubic hair used for
analysis.
(iii-c) Probative value of DNA profiling report:-
91. Defence assailed the findings in the CFSL report on technical
grounds too. It is argued the underlying basis of the report i.e.
worksheets for extraction, quantification, amplification, genotyping of
exhibits, copies of electropherograms and equipment logs had not been
placed. Statistical analysis showing frequency of occurrence of DNA
genotyping had also not been brought on record.
92. During pendency of the appeal Saiful took out an application
under the Right to Information Act ('RTI' for short) calling upon the
authorities to supply all records i.e. copies of worksheets for extraction,
quantification, amplification, genotyping, electropherograms, equipment
logs and chain of custody. Pursuant to the application, relevant
documents including electropherograms were supplied to the appellant.
In light of the said documents, appellant took opinion of a researcher
regarding correctness of the CFSL report. An application being CRAN 1
of 2023 was filed praying that the said documents and the report of the
researcher be taken on record while considering the correctness of the
CFSL report.
93. State has strongly opposed the application. Public Prosecutor
as well as the learned Counsel for the de-facto complainant contended
CFSL expert (P.W. 25) was examined in Court. He was cross-examined
at length. No prayer was made to produce the worksheets including
copy of electropherograms, etc. to confront the expert during trial.
During appeal documents have been obtained pursuant to a query
under the RTI Act. These documents cannot be relied upon. Opinion of
the researcher cannot be read into evidence as she was not examined in
Court. In CRAN 1 of 2023 no prayer to lead additional evidence by
examining defence witnesses has been made.
94. It is true appellant did not pray for production of the
worksheets including copies of electropherogram before the trial Court.
However, P.W. 25 during cross stated report could not have been
prepared without sequencer chart. He also admitted without worksheets
it is not possible for a layman to decide the correctness of the report. In
such view of the matter it becomes necessary to examine the foundation
of the DNA report in the backdrop of the worksheets, electropherograms
and other documents.
95. No doubt these documents have not been formally proved but
it is not disputed that they were supplied by an authority which in
ordinary course of business was duty bound to maintain them and were
obtained in accordance with a process recognized by law. This is not
disputed by the State or the complainant. These documents can be
treated as 'matters on record' which may be considered to determine
whether a fact in issue i.e. findings of the DNA report are proved or not.
In this regard, it may be apposite to refer to the definition of 'proved' in
the Evidence Act. Section 3 of the Act states a fact is said to be proved if
after considering the matters on record the Court believes or considers
it probable that it exists. The section uses the word "matters before it"
which may include matters which are not evidence e.g. report of local
inspection or answer to questions under section 313 CrPC8. Likewise,
opinion of the researcher though not opinion evidence may be
considered as persuasive argument by the defence to be tested against
the 'matters on record'.
96. Let me consider the correctness of the findings in the DNA
report (Exhibit 29a) in the light of the matters before the Court.
97. DNA molecule comprises the genome of an individual and is
found in the nucleus and mitochondria of human cell. DNA of each
individual is unique. It is a thread like structure comprising of 23 pairs
of chromosomes, each arranged in a linear sequence. One chromosome
of each pair is inherited from either parent. They carry genetic
information inherited from parents. Each pair of chromosome is a
twisted ladder like structure connected to each other through base pairs
(hydrogen bonds) in a sequence. The twisted ladder like structure is
called the double helix. The base pairs connecting the chromosomes are
adenine (A), cytosine (C), guanine (G) or thymine (T). Each base pair
connects to the other base i.e. A-T and G-C. Each person has a unique
sequence of bases in the genome. He can be identified solely on the
sequence of his/her genome.
S. P. Sen Gupta, 'Sen Gupta On Evidence' (1988 edn, Kamal Law House 1988)
98. Scientists have developed methods like Short Tandem Repeats
('STR' for short) where a small number of repeat sequences of base pairs
on specific physical locations on the chromosomes that are known to
vary in every individual are analysed. These physical locations on the
chromosomes are fixed and known as loci ('locus' for singular).
99. A gene is the genetic information stored at a particular locus
on a pair of chromosomes. A person has two pairs of gene at a locus,
one from the maternal and another from paternal side. An allele is one
of a pair of gene at a particular locus. A pair of alleles at a particular
locus of an individual is called genotype. A pair of alleles may be
identical if the same allele is inherited from each of the parents at a
particular locus. A set of genotypes in two or more loci forms the DNA
profile of the individual.
100. Genome in an individual contains approximately
6,600,000,000 base pairs of DNA. For DNA profiling through STR the
number of repeats of a small set of base pairs e.g. 4/5 in number at
specified locus/loci are measured. To do so, sequence of base pairs at
the locus is copied and amplified in vitro through a technique called
Polymerase Chain Reaction ('PCR' for short). Each sequence of base
pairs at a locus is separated by size (based on number of repeats)
through a process known as electrophoresis. The number of repeats of
the sequence sets in each allele is mapped as a peak against a
horizontal base line representing a particular locus. The chart is defined
as an electropherogram. Each allele peak at a locus is assigned a
number equivalent to the number of repeats at that locus. For example,
if the number of repeats on each allele at a locus is 5 and 10
respectively then the genotype would be 5:10. If the repeats are same
for both the alleles the electropherogram would show a single peak and
would be assigned a number equivalent to the common number of
peaks in each allele.9
101. A DNA profile is a series of numbers that represents all the
genotypes detected for each locus in a particular series. Number of
repeats in each allele at a particular locus is unique to an individual. So
if the genotypes at different loci in two samples matches it can be said
the DNA material in both the samples is the same and it is said to be a
match or inclusion. If they do not match it is said to be an exclusion
which proves the DNA material in the two samples is not the same. But
a match or inclusion does not establish with certainty that the DNA
material in the samples belong to the same person. It creates a
probability which increases with the number of loci analysed. Since
2014 in the UK, 16 loci are examined and in Scotland, 23 loci are
examined to establish a match10. Then the result must be statistically
analysed against the recurrence of the same genotype in the population
defined as 'random occurrence ratio' to come to a conclusion with
regard to the identity of the source of DNA material.
Sandile Bokolo vs. S, (483/12)[2013] ZASCA 115 (18 September 2013)
The Royal Society of Edinburgh, Forensic DNA analysis - A Primer for Courts, [2017] PL 10
102. In the present case, Exhibit 29a shows STR analysis was
made with regard to 21 loci and the samples, namely, blood on Saiful's
lungi (Exhibit S), pubic hair (Exhibit A3) and blood samples of Saiful
(Exhibit T) showed an allelic match at 20 out of 21 loci. Result at one
locus was inconclusive.
103. Copies of electropherograms have been produced in Court. On
examining the said copies it appears the allelic peak numbers marked
in electropherogram of each of the samples has been correctly reflected
in the STR. Hence, findings in STR report are in consonance with the
allele peaks in the electropherograms in respect of blood sample of
Saiful (Exhibit T), blood on lungi (Exhibit S) and pubic hair (Exhibit A3).
Effect of inconclusive result in 1 out of 21 loci was explained by P.W.
25. During cross, P.W. 25 clarified if the STR report is inconclusive in 1
out of 21 loci, the conclusion may be of reduced probability but cannot
be treated to be forensically incorrect.
104. The conclusion is assailed on behalf of defence on the
following issues:-
i. Unsuitable allelic ladders used for genotyping: As the
genotyping software settings are adjusted for every run based on
the sample type and the sample run, for proper genotyping, at
least one allelic ladder is required to be run along with the sample.
However, the peak structure of the allelic ladder appear similar on
both sets of EPGs, indicating that the same allelic ladder was used
for genotyping all the samples despite not running alongside the
sample. Also, laboratory documentation show that the evidence
and reference samples in this case were run on multiple days in
two batches but it does not specify whether an allelic ladder was
included in every run. Further, 17 out of 21 loci in the allelic ladder
showed OL peaks including Penta E (locus with all OL peaks). The
above findings manifest that the allelic ladder used for the
interpretation of the samples in this case is unsuitable, hence the
reliability of the DNA results cannot be established.
ii. Unsuitable reference sample of Saiful Ali: Exhibit T: Blood
Sample (Source: Saiful Ali) shows unmarked peaks on 6 loci
indicating the presence of a mixture or the possibility of
contamination. Reference profiles are collected from known
individuals, hence is a single contributor sample that should have
a maximum of two alleles at each locus. Since the negative control
was not run alongside the samples, it is not possible to ascertain
the cause of the anomaly highlighting the lack of quality
control/validation. Further, the DNA profile shows that the locus
D7S820 on Exhibit T: Blood Sample (Source: Saiful Ali) was not
amplified properly. Using a partial profile for comparison purposes
has a higher chance of matching another individual by chance and
resulting in false positive identification.
iii. Unmarked peaks in Exhibit A3: Hair and Exhibit S: Lungi:
During the interpretation of an EPG, the analyst must analyse all
the peaks in the EPG to determine the genotype of the sample.
Multiple unmarked peaks were observed in 8 loci in Exhibit A3:
Hair and 6 loci in Exhibit S: Lungi indicating the presence of a DNA
mixture or contamination. However, the CFSL report concluded
both these samples as a single-source DNA profile with the source
as Exhibit T: Blood Sample (Saiful Ali). It appears that the
unmarked peaks have not been considered during interpretation
calling to question the reliability of the attribution of the profile to
Saiful Ali.
iv. Failed to report the statistical analysis: Based on the
laboratory documentation, Exhibit A3: Hair and Exhibit S: Lungi
were statistically analysed. To state the statistical relevance of a
match correctly, all the loci where the genotypes were identified
must be included in the interpretation as well as in the statistical
calculation. However, the calculations did not include 6 out of 21
loci. Also, the CFSL report did not report the calculated statistics as
part of the DNA match result. Therefore, it is not possible to
evaluate the evidentiary value of the Exhibit A3 and Exhibit S as
without the statistical analysis of the relevant DNA profile, the
weight of the match cannot be determined.
105. With regard to the first issue, i.e.,
Same allelic ladder being used:-
This does not prejudice the STR Report regarding Exhibits S,
T and A3. The allele table in electropherogram of these samples do not
show off ladder peaks.
Hence, allele ladder used was not inadequate. No question
was put to P.W. 25 that same allele ladder was used on different dates.
Accordingly, the inference is speculative and does not impact the STR
Report.
106. With regard to the second and third issues, i.e.,
Reference material, i.e. blood sample, lungi and hair have
additional peaks:-
Additional peaks at a locus may be either due to
contamination or noise artefacts like "Stutters", "A peaks" and "Pull-
ups". Stutters are low peaks caused by slippage of the enzyme DNA
Polymerase used to copy and amplify the DNA. These appear as one or
more repeat unit shorter than the main allele peak in the
eletrcopherogram and are not considered for inferring the genotype at
that locus. Similarly, a peak is a 'shoulder' peak in which the left of the
main peak is one base smaller and 'pull-ups' are small peaks of same
size appearing during detection11. All such artefacts have to be excluded
during comparison of evidence sample and known sample. It is possible
additional peaks in the loci analysed and appearing in the
electropherogram were due to 'stutters' or other artefacts and would not
lead to an inference of contamination and rejection of STR Report.
107. With regard to the fourth issue, i.e.,
No statistical analysis -
Report itself shows there was a statistical analysis but 5 out of
21 loci were not included. This view shows statistical analysis on
'random occurrence ratio' was done in 15 out of 21 loci. This is almost
on par with UK standards where comparison of 16 out of 21 loci is
considered sufficient12. Hence, report ought not to be rejected outright
on this score.
108. In the present case, DNA profile report is not the sole basis of
conviction. Prosecution case against Saiful is primarily based on judicial
confession which is corroborated by other circumstances. DNA profile
report is another piece of corroborative evidence which lends assurance
to the judicial confession and other evidence on record.
109. In Rahul vs. State of Delhi, Ministry of Home Affairs and
Another13 the Apex Court held the underlying basis of the findings of
The Royal Society of Edinburgh, Forensic DNA analysis - a primer for courts, [2017] PL 29,30
The Royal Society of Edinburgh (n 3), 5
(2023) 1 SCC 83
DNA report must be gone into. It also discarded the report as there was
delay in dispatch of samples for CFSL examination. Exhibit 29a clearly
sets out the process of DNA profiling through DNA isolation by organic
extraction method and amplification by multiplex PCR method for Short
Tandem Reports (STRs) and amelogenin loci the amplified products
along with controls were run on automated sequencer and analysed
using GeneMapper ID software with respect to Standard Ladder. STR
report findings match the allelic peaks against the respective loci in the
electropherograms for the relevant samples. Objections raised are
ambivalent and may be explained away. They may impact probability of
the conclusions but do not render them wholly unacceptable. Moreover,
the hair and other articles were kept inside a large packet which bore
the seal of the hospital improbabilising substitution.
110. In Manoj and Others vs. State of Madhya Pradesh14 the Apex
Court held DNA evidence, being in the nature of opinion evidence, its
probative value is to be tested on a case to case basis. It can be used to
corroborate the prosecution case. In the facts of the cited case, it
discarded the evidence as seizure of most of the samples subjected to
DNA analysis was doubtful.
111. In Premjibhai Bachubhai Khasiya vs. State of Gujarat15 the
Gujarat High Court held a positive DNA report can be used to
corroborate supporting evidence on record.
2022 SCC OnLine SC 677
2009 SCC OnLine Guj 12076
112. The concept of proof in law of evidence is not one of certainty
but of reasonable probability which a man of ordinary prudence would
believe. Like other evidence, probative value of an expert opinion is to be
tested on the anvil of reasonable probability within margins of error.
Development of science and fidelity to test protocols are important
parameters to assess the reliability of expert opinion. The threshold of
satisfaction of the Court is much higher when the opinion evidence is
the main bulwark of the prosecution case. However, when other
evidence on record e.g. judicial confession and other incriminating
circumstances establish the prosecution case, the opinion evidence of
PW 25 and Exhibit 29a (which for reasons recorded above are not
wholly unreliable) may be used to corroborate such evidence and lend
assurance to the finding of guilt against Saiful.
113. Hence, the evidence on record establishes beyond doubt the
role of Saiful in the rape and murder of the victim.
G. Criminal conspiracy to commit rape - whether proved:-
(i) P.Ws. 14 and 15 whether reliable:-
114. Prosecution has relied on P.Ws. 14 and 15 to prove there was
prior concert between the appellants to commit the rape and murder.
P.W. 14 is a daily labourer. He stated he used to reside at Kalikapur,
Barasat. He is a distant relation of P.W. 13. He knew P.W. 15 who
hailed from his native village 'Bahira'. Both of them knew one Rahim
who used to reside at 'Par Kharibari'. Both of them deposed on 2nd/3rd
June, 2013 they had gone on the motorcycle belonging to P.W. 15 to
visit one Rahim. Enroute, they stopped at a tea stall at Langalpota.
There they saw the appellants sitting and having tea. Appellants were
stating womenfolk of Kamduni do not give them attention. Ansar stated
daughter of P.W. 13 scoffed at him. Thereupon, Saiful stated that she
would be taken to 8 Bigha plot and taught a lesson.
115. Thereafter, they left the place. P.W. 14 during cross-
examination stated in the first week of July he had gone to Hooghly for
work. On 08.07.2013 he went to DDI Office and made statement. He
was extensively cross-examined. During further cross-examination, he
stated a different version that he had gone to Hooghly in the month of
June. P.W. 15 deposed on 2nd /3rd June, 2013 he was proceeding to the
house of Rahim with P.W. 14. They stopped at a tea stall at Langalpota
and heard the discussion among the appellants regarding the victim.
P.W. 14 stated that he would inform the uncle of the victim Bimal
Ghosh, a sattu vendor at Kamduni More but they could not find him.
They left the place. In cross-examination, P.W. 15 admitted that he had
never gone to residence of P.W. 14, though he claimed that he had been
regularly visiting the house of Rahim. He admitted he had not visited
his house after the incident. He further stated that he saw on television
that CID had published notice inviting individuals to share information
regarding the incident. He saw this on television on 5 th, 6th, 7th July,
2013 P.W. 14 rang him up and informed him about the said news on
television and he saw it. Apart from that he had not seen that
information anywhere. Therefore, they went to the police station and
made statement.
116. He stated that he had sold his motorcycle a month ago but
could not produce any documents. Both of the witnesses admitted they
had criminal cases pending against them and had been arrested.
117. Learned Counsel for the appellants assailed the credibility of
the aforesaid witnesses on a number of scores. It was contended that
the said witnesses are chance witnesses and have been belatedly
examined. Explanations of the witnesses that they were present at the
tea stall while they were going to the residence of their friend Rahim is
not corroborated by examining Rahim. P.W. 15 admitted police had not
taken them to the tea stall for identification but P.W. 31 claimed that
the so-called tea stall owner, Sagbat Molla, was examined during
investigation. The said Sagbat Molla however was not examined in
Court. There are also serious contradictions in the depositions of the
witnesses with regard to the manner and circumstances in which they
heard the discussion between the appellants and their subsequent
conduct. It is also argued the explanation for their delayed examination
has not been proved. P.W. 31 claimed notices had been put up in the
locality inviting individuals to share information regarding the incident.
But neither did he produce the notice nor did he state that the
information regarding the notices had been telecast. On the other hand,
P.W. 15 claimed that he had received information about the notices
through television bulletin. He had been informed about the matter by
P.W. 14. P.W. 14 does not corroborate him on this score.
118. I have given anxious consideration to the rival submissions of
the parties with regard to the credibility of P.Ws. 14 and 15. Admittedly,
P.Ws. 14 and 15 are chance witnesses. One of them resides at Barasat
while the other resided at Baguihati. Though they claimed they hailed
from the village 'Bahira', P.W. 15 admitted he had never gone to the
residence of P.W. 14. How and where they met each other to proceed to
the residence of Rahim is also unclear. They claimed they had travelled
on a motorcycle belonging to P.W. 15 but the latter during cross-
examination was unable to provide the registration mark or even the
papers relating to the sale of the said motorcycle. Most importantly, the
said common friend Rahim has not been examined to corroborate their
version. When the prosecution rests on chance witnesses, corroboration
with regard to the circumstances which lead to their presence at the
relevant place is essential. Non-examination of Rahim affects the
unfolding of the prosecution case on this score.
119. It is also relevant to note that Sagbat Molla, owner of the tea
stall though examined by police had not been produced before the
Court. This leads to an adverse inference with regard to the deposition
of the said witnesses regarding the incident. This is further
compounded by the belated examination of the said witnesses. They
had not been cited as witnesses in the initial charge-sheet. P.W. 31
deposed during further investigation he put up notices inviting
individuals to share information regarding the incident. These notices
were put up in and around Kamduni area. He was silent with regard to
the said notices being telecast. P.Ws. 14 and 15 were not the residents
of Kamduni area. P.W. 15 claimed he received a phone call from P.W. 14
that news about notices being published regarding the case was shown
on television. P.W. 15 also saw such information and then they
proceeded to make statement to police. Version of P.W. 15 that P.W. 14
had informed him about the incident is not corroborated by the latter.
Even P.W. 31 is silent with regard to any news being telecast regarding
the aforesaid notices. Conduct of the witnesses after hearing the
information is also contradictory. While P.W. 14 who is a distant
relation of the father of the victim, P.W. 13 merely claimed that he left
the place, P.W. 15 stated that they had gone to Kamduni More to inform
the incident to Bimal Ghosh, uncle of the deceased. P.W. 14 tried to
cover up his unnatural conduct of not informing the relations of the
victim about the incident even after her death by claiming that he had
gone to Hooghly for work but his deposition in this regard is
contradictory. In cross, he claimed that he had gone for work to Hooghly
in the month of July between 1st to 7th July. Subsequently, during
further cross-examination he stated he had left for work before or
immediately after 07.06.2013. This prevaricating stance does not
inspire confidence and is too flimsy to explain the unnatural conduct of
P.W. 14 in failing to inform the incident at least to the relations of the
victim after her death. If P.W. 14 was known to the father of the victim,
it is unnatural that he would wait for publication of notice through the
television or otherwise to come out with such vital information
regarding the sinister discussion overheard by him regarding the victim.
120. Finally evidence has come on record that P.Ws. 14 and 15 had
been arrested in criminal cases earlier, P.W. 15 admitted such fact
during cross-examination. Defence produced charge-sheets and claimed
P.W. 14 was named as an accused therein. There was confusion with
regard to the identity of the accused and prayer was made for recalling
P.Ws. 14 and 15 for cross-examination. This was turned down by the
trial Court and is the subject matter of a Criminal Revision being CRR
No. 2789/2014. Be that as it may, the witnesses admitted that they
were arrested in criminal cases earlier. It is true deposition of a witness
who is an accused in another criminal case (unconnected with the
present one) cannot be thrown out on such score alone but the fact that
the witness is an accused in another criminal case increases the
possibility of police influence on him. Under such circumstances, it is
the duty of the Court to test his evidence with circumspection and seek
corroboration. Non-examination of vital witnesses like the tea stall
owner, Sagbat Molla or the friend Rahim to whose house the witnesses
claimed to have been going assumes importance. In this backdrop, I do
not consider it prudent to rely on the versions of P.Ws. 14 and 15 which
are riddled with various contradictions and improbabilities to come to
the conclusion that the prosecution case with regard to the discussion
between the appellants regarding the victim at a tea stall in Langalpota
on 2nd/3rd June, 2013 has been proved.
(ii) Conduct of the appellants:-
121. Prosecution has also relied on evidence of the relations of the
victim i.e. P.Ws. 1, 2, 7 12 and 13 to show that the appellants used to
drink and taunt girls in the locality. P.W.12, the mother stated victim
told her the appellants used to taunt her and she narrated this fact to
her husband. P.W. 13 corroborated her. The aforesaid evidence even if
believed to be true shows the appellants used to drink and misbehave
with girls in the locality including the victim. This may give rise to a
general impression of their propensity to harass women but the same
by no stretch of imagination can be treated as a proof of meeting of
minds to commit rape of the victim.
122. In support of such appreciation of evidence one may profitably
refer to Illustration (p) to section 14 of Evidence Act16.
123. Even if the conspiracy angle is not proved, one is required to
sift the evidence on record to test whether other appellants apart from
Saiful shared common intention with the latter to commit the rape and
murder of the victim.
Illustration (p): A is tried for a crime.
The fact that he said something indicating an intention to commit that particular crime is relevant.
The fact that he said something indicating a general disposition to commit crimes of that class is
irrelevant.
H. Role of Ansar in the crime:-
(i) Control of 8 bigha plot:-
124. Ansar was the leader of the party. He wielded power and
influence in the locality. His influence was of such degree that even the
owners of the trust of 8 Bigha plot had to succumb to his strong arm
tactics.
125. P.Ws. 18 and 20, manager of the trust and the contractor who
built the boundary wall have succinctly described the state of affairs.
P.W. 20 corroborated P.W. 18 that the security guard put up by the
trust were driven away and he was compelled to hand over the key to
Ansar. Thereafter, Ansar was in charge of the property. In this
backdrop, it is natural that the local people were overwhelmed and
fearful to raise any protest or approach the police regarding the
nefarious activities of Ansar and his associates. Inability of the family
members of the victim or any other womenfolk in lodging complaint to
the police is to be attributed to the fear prevailing in the locality and
cannot be a ground, as argued on behalf of the defence to improbabilise
their version in Court. Only after the dead body of the victim was
recovered did the people gather courage and raised protest in the area.
Thus, Ansar appears to be the leader of the group. He was in control of
the 8 bigha plot and the key of the plot was also kept with him.
(ii) Presence at the place of occurrence:-
126. Prior to the incident around 1:00 p.m. Ansar, Saiful and other
appellants were noticed in a drunken condition in front of Alaghor by
P.W. 10. Soon after the incident, P.W. 1 on his way back from Kamduni
More saw Ansar locking the gate of 8 bigha plot. Saiful was standing
beside him and stating that they had a good time and should go home.
It has been argued that this fact is not stated in the FIR. Saiful is not
even named in therein. This omission in my estimation is of little
consequence. P.W. 1 was not the author of the FIR. It was lodged by
P.W. 2 and scribed by P.W. 3. They are the family members of the
victim. They were in a state of shock after discovering the semi naked
mutilated body of their sister. Over this issue a commotion ensued.
Initially, P.W. 29, first investigating officer who arrived at the spot was
unable to control the mob. He called for additional forces and removed
the dead body to the hospital where inquest was conducted. Under such
stressful conditions FIR came to be lodged by P.W. 2. Omission on his
part to record the fact that his brother (P.W. 1) had seen Ansar and
Saiful together while returning from Kamduni More does not affect the
credibility or truthfulness of P.W. 1. As per confession of Saiful he had
disclosed the incident to Emamul and the latter disclosed it to others
including Ansar. Thereafter, Ansar told him to leave the spot. Hence,
Saiful left the spot and in the FIR which was registered on the basis of
mere suspicion P.W. 2 did not disclose the name of Saiful. Such
omission is clearly explained away from attending circumstances and
does not affect the credibility of the prosecution case.
(iii) Nail scratches on body:-
127. Ansar was arrested on 08.06.2013 and was medically
examined by P.W. 23 at Barasat District Hospital. P.W. 23 found the
following injuries on the body of Ansar:-
"1. A nail scratch abrasion the left anterior chest wall 1" medical to
the left nipple;
2. A pair of contused nail scratch abrasion on the left arm below the
should joint;
3. A nail scratch abrasion above right elbow joint in the night forearm.
All the injuries showed feature of vital reaction. The injuries were
non-scabbed. The nail cuttings and pubic hair are preserved for
chemical examination."
128. Prosecution relied on the aforesaid circumstances and the
false explanation of Ansar with regard to the injuries on his body to
come to a finding that he shared common intention with Saiful to
commit the rape. On the other hand, learned Counsel for Ansar submits
that the prosecution case with regard to gang rape suffers a death blow
from the confessional statement of Saiful. It is also argued arrest memo
did not disclose any bodily injury on Ansar and he claimed that he had
suffered the injuries due to assault in police custody.
129. Immediately after his arrest P.W. 23 examined Ansar and
found nail scratch injuries on his chest and left arm. Evidence of a
medical officer regarding presence of injuries would override the notings
in the arrest memo which is made by a police officer who may not have
examined the body of the appellant with sufficient attention. Absence of
injuries in arrest memo would be of little consequence to come to a
conclusion that there were no injuries on the body of Ansar at the time
of arrest. Moreover, Ansar did not raise any plea of physical assault at
the earliest opportunity, i.e. during his production before the
Magistrate. Only during trial bald questions were put to the
investigating officer with regard to the physical assault. Moreover,
during cross-examination P.W. 23 denied that such injuries on Ansar
could be caused by finger ring as suggested by the defence. It is also
pertinent to note that the plea of injury due to physical assault was not
raised at the earliest point of time. At no time during his production
before Magistrate did Ansar raise any plea of physical assault. Belatedly
during trial he put questions to the doctor (P.W. 23) and investigating
officer that the injuries could be caused by a finger ring during assault.
This was also denied by the doctor.
130. Hence, I find little substance in the explanation offered by
Ansar with regard to the injuries on his body. On the other hand, the
injuries in the form of nail scratch marks on his chest and left hand
given an impression that he had participated in overpowering the victim
in the course of the incident.
(iv) Exculpatory portion of Saiful's confession - inherently
improbable:-
131. Another aspect highlighted by the defence is the confession of
Saiful. Saiful's confession exculpates the other appellants including
Ansar. Section 24 of the Evidence Act makes a confession of an accused
admissible so far as he is concerned provided the confession is not
procured through threat, coercion or inducement. Section 30 of the
Evidence Act makes the confession of a co-accused admissible against
another in same trial as corroborative evidence. The word 'against
another' in section 30 makes it evident that the said provision of law
refers to an inculpatory part of the confession and not exculpatory
portion of confession by a co-accused. The rationale behind such
statutory scheme is obvious. The maker of a confession that is an
accused cannot be subjected to cross-examination by the prosecutor.
Hence, an exculpatory portion in the confession of a co-accused cannot
be utilized by another to the prejudice of the prosecutor who is unable
to cross-examine the maker.
132. But as per section 11 of the Evidence Act a fact which is
otherwise not relevant may become relevant if it is inconsistent with any
fact in issue or relevant fact. Exculpatory portion of a confession by a
co-accused may be relevant under section 11 of the Evidence Act if it is
inconsistent with a fact in issue or relevant fact.
133. In the present case, prosecution proposes to prove that Saiful
was present with Ansar and others when the victim was raped. The
exculpatory portion of Saiful's confession is inconsistent with the
aforesaid fact in issue and if true would improbabilise its existence.
However, before drawing such conclusion, the Court must examine the
truthfulness or reliability of the exculpatory portion of confession.
Ordinarily a man would not inculpate himself while exonerating others.
In such cases a heavy duty is cast on the prosecution to rebut this
normal human conduct and show strong and weighty reasons exist
which had prompted the confessor while admitting his guilt to shield
the others.
134. Do such facts exist in the present case? A deeper scrutiny of
Saiful's confession would give the answer. Saiful admits in his
confession that Ansar was the source of his economic sustenance. He
used to work under him and gain his livelihood. Evidence on record also
shows that Ansar had control over Saiful and other appellants. Even on
the fateful day as per Saiful's confession, Saiful had worked under
Ansar and he had provided him and others with food and drinks. Under
such circumstances, it may not be improbable that Saiful who had
confessed his own guilt was trying to protect his master from the rigors
of law. He may have been prompted to do so on the expectation that the
more resourceful Ansar (if exonerated) would continue to support him
and his family.
135. It is argued that a confession must be read as a whole and the
exculpatory part of the confession may not be excluded. This
proposition is not of universal application. In cases where exculpatory
portions of the confession are inherently improbable and inconsistent
with other compelling circumstances the said portions may be ignored
while relying on the inculpatory part.17
136. Let me examine the exculpatory aspect of Saiful's confession
qua Ansar in this perspective. Evidence on record shows Ansar had the
Nishi Kant Jha vs. State of Bihar, (1969) 1 SCC 347 (para 14 to 23)
key to the 8 bigha plot. In his confession, Saiful claimed that he
followed the victim with the key of the boundary and proceeded to
commit the crime. This evasive statement that 'he collected the key' is
inconsistent with the evidence on record that the keys were kept with
Ansar. On the fateful day, they worked in the bherries i.e., water bodies.
After the work was complete it is claimed that Ansar had left the spot.
137. In this backdrop, claim of Saiful that Ansar had left is
improbable in as much as he would not otherwise have access to the 8
Bigha plot. Assessed from this background, it would show that Saiful
had made an evasive claim of collecting keys instead of admitting that
Ansar was present and had helped him to open the gate and commit the
crime. This is in consonance with the bodily injuries on Ansar which
were suffered by him within 24 hours of the examination, i.e. on the day
of incident and remains unexplained by him. In fact, the circumstances
become clinching as he belatedly offered a false explanation regarding
such injuries caused in police custody. The following incriminating
circumstances clearly stand established against Ansar. Ansar was the
leader of the group and Saiful was wholly dependent on him for his
livelihood. He had the keys to 8 bigha plot. On the fateful day Ansar had
employed Saiful and Bhutto to work in the bherry adjoining 8 bigha
plot. Thereafter, he entertained them and other appellants at his
Alaghor with wine and food. Thereafter, Saiful committed the crime.
138. Saiful's exclusion of presence of Ansar during commission of
crime is inherently improbable and inconsistent with other
circumstances and does not inspire confidence for the reasons
summarised hereinbelow:-
(a) In his confession Saiful was silent wherefrom he got access
to the key. Ansar was in control of the plot and key used to
remain with him. Unless Ansar was present to hand over the
key to Saiful it would not be possible for the latter to take the
victim inside the 8 bigha plot and rape her;
(b) Presence of Ansar at the time of attack on the victim is
supported by the retaliatory nail mark injuries found on his
chest and left arm;
(c) False explanation given by Ansar that the injuries were due
to assault in police custody is a belated one and also
improbabilised by the evidence of the doctor, P.W. 23;
(d) Presence of Ansar soon after the incident as noted by P.W.
1 and his discussion with Saiful also indicates to his
participation in the crime;
(e) Subsequently, P.Ws. 9 and 10 deposed they saw Ansar
plotting with other appellants with regard to removal of the
body.
139. These circumstances clearly establish the role of Ansar as one
who shared common intention with Saiful to commit rape and murder
of the victim.
I. Role of Bhutto, Emamul, Bhola and Amin:-
140. P.W. 1 stated on 07.06.2013 he had escorted his sister to the
bus stand. Her sister had gone to take an examination. In the afternoon
he went to the bus stand to bring her back. He could not find her. His
uncle who had a shop at the bus stand told him that his sister had left
the place. He returned home. His mother informed that his sister had
not returned home. He again went to the bus stand to enquire into the
matter. On his returning he found Ansar locking the gate of 8 bigha
plot. Saiful was standing beside him. Saiful was telling Ansar that they
had a good time and should go home. When P.W. 1 was examined on
27.09.2013 he made a generic statement that other accused persons
were sitting and playing cards when he saw Ansar and Saiful in front of
the gate. Witness does not state with regard to any overt act or
conversation between the other appellants and Ansar and Saiful which
would give an impression they shared common intention with the latter
to commit the crime. Even the identity of the persons whom the witness
had seen apart from Ansar and Saiful is doubtful. On 27.09.2013 the
witness could identify only Gopal and Bhola by name. After four months
on 28.01.2014 he was further examined. He identified Emamul, Nuro,
Gopal, Bhola, Amin and Rafiqul. Appellants used to remain in the same
locality as P.W. 1. He was well acquainted with their identities and
behaviour. In this backdrop, failure of the witness to name Emamul and
Amin Ali during his examination on 27.09.2013 and thereafter naming
them after four months is a clear case of embellishment and ought not
to be given credence. Even with regard to Bhola, statement of the
witness is most generic and non-specific. He does not attribute any
overt act or comment by Bhola which would give an impression of
participation or sharing of common intention with Ansar and Saiful in
the rape and murder.
141. Apart from P.W. 1, the other relevant witnesses are P.Ws. 9
and 10. P.W. 10 stated he had seen Ansar, Saiful, Emamul and Bhutto
in front of the Alaghor in drunken condition around 1 p.m. He had also
seen Bhola and Gopal.
142. Bhola made an exculpatory statement before Magistrate
(Exhibit - 8). He stated he went to the Alaghor where Saiful, Ansar,
Emamul, Bhutto and Gopal were drinking. He drank with them. Then
he left the place with Gopal. In the evening he came to Kamduni More
and saw Emamul, Bhutto and Ansar discussing how to bury the corpse
at night. Ansar stated Saiful had raped and murdered an unmarried
girl. Bhutto threatened him not to disclose the incident to anyone. He
also came to know the identity of the victim.
143. Confessional statement of Saiful and exculpatory statement of
Bhola before Magistrate corroborates P.W. 10's evidence. But Saiful
stated in his confession these appellants and Ansar had left the spot.
For reasons recorded above, I have not relied on this part of Saiful's
statement vis-à-vis Ansar.
144. Ansar had the control and possession of the 8 bigha plot, that
is, the place of occurrence. The plot was locked and the key was with
Ansar. In his confession Saiful does not clarify how he got hold of the
key. This could not be possible except for the active connivance and
support of Ansar to commit the crime. Saiful was wholly dependent on
Ansar for his livelihood and the latter had overwhelming influence over
the former. This had compelled Saiful to tailor his statement to protect
Ansar. These inculpatory factors do not apply to the other appellants,
namely, Emamul, Bhutto, Amin and Bhola. Accordingly, confession of
Saiful that these appellants had left the spot prior to the occurrence can
be taken to be truthful and relied upon. Presence of these appellants at
the time of occurrence and their sharing of common intention with
Saiful and Ansar to commit rape and murder is not established.
145. Prosecution has argued scratch abrasions on the arm and
shoulder of Amin Ali are incriminating circumstances which have not
been explained by the said appellant. This gives rise to an adverse
inference against the appellant in the crime. I am unable to accept such
proposition. It is true scratch abrasions on the arm and shoulder of
Amin Ali were noted by the doctor. Amin Ali claimed he was working in
a marble shop and had suffered injuries in course of his work. He
examined D.W. 1 to probabilise his defence. Trial Judge has not
believed the said defence witness. Relying on this, prosecution would
submit false explanation of Amin Ali would bolster its case.
146. In a case based on circumstantial evidence, prosecution may
rely on false explanation by an accused as an additional link only after
marshalling other incriminating circumstances a reasonable inference
of guilt is made out.18 Prosecution must stand on its own leg and not on
the weakness of the defence. Unlike Ansar there is no convincing
evidence with regard to the presence and participation of Amin Ali in
the crime. P.W. 1 did not name Amin Ali for the first time as one of the
persons present when he had seen Ansar locking the gate of 8 bigha
plot and Saiful standing beside him. After four months he embellished
his version and named Amin Ali. Belated inclusion of Amin Ali as one of
the persons present at the spot while Ansar was locking the gate ought
to be taken with a pinch of salt. Moreover, P.W. 10 did not see Amin Ali
at 1:00 pm in front of the Alaghor with other appellants. P.Ws. 9 and 10
were also silent with regard to presence of Amin Ali in the evening when
other appellants were seen secretly discussing and pointing to the spot
wherefrom dead body was recovered. Unlike Ansar the injuries on Amin
Ali have not been described as 'nail scratches' but as 'scratch
abrasions'. This also improbabilises the prosecution case that Amin Ali
suffered such injuries from nail scratches of the victim when she
struggled during rape.
147. Prosecution case that Emamul, Bhutto, Bhola and Amin Ali
shared common intention with Saiful and Ansar to rape and murder the
victim stands on a shaky foundation and cannot be said to have been
proved.
Sharad Birdhichand Sarda vs. State of Maharashtra, (1984) 4 SCC 116 (para 151,159 and 160)
J. Conspiracy to cause disappearance of evidence:-
148. In the course of search, P.Ws. 9 and 10 found that the
appellants (apart from Amin Ali, Nuro and Rafiqul) were standing near
the 8 bigha plot and behaving in a suspicious manner. P.W. 9 stated
that the appellants were talking amongst themselves and showing
Gopal something behind the boundary wall. P.W. 10 claimed that they
were talking amongst themselves and became silent as soon as he
approached them. These circumstances show there was meeting of
minds between the appellants apart from Amin Ali, Nuro and Rafiqul.
After the incident they were secretively discussing amongst themselves
and pointing to a spot behind the 8 bigha boundary wall wherefrom the
body of the victim was recovered. The aforesaid evidence is corroborated
by the confession of Saiful that the other appellants had assured him
that the dead body would be disposed of later on.
149. Confession of a co-accused is not a substantive evidence.
However, it may be used to corroborate other evidence on record which
prima facie establishes the ingredients of the offence. Evidence on
record shows that the victim had been raped and murdered in the 8
bigha plot and her body had been dumped behind the said plot. The
perpetrator of the crime i.e. Saiful was seen discussing some matter
with the other appellants and pointing to the place from where the body
was subsequently recovered. The appellants apart from Amin Ali, Nuro
and Rafiqul fell silent when P.W. 10 came near them.
150. The aforesaid evidence, therefore, establishes the prosecution
case that the appellants Saiful, Ansar, Emamul, Bhutto and Bhola were
secretively discussing amongst themselves after the occurrence
regarding the manner of disposal of the dead body which is
substantiated by the confessional statement of co-appellant Saiful. Even
if one discounts the evidence of P.Ws. 14 and 15, the evidence on record
corroborated by the confession of Saiful proves beyond doubt that
Saiful, Ansar, Emamul, Bhutto and Bhola had entered into a criminal
conspiracy to cause disappearance of evidence to screen the real
offender. But the evidence does not implicate Amin Ali, Nuro and
Rafiqul even on this score. Accordingly, I hold prosecution has been
able to prove after Saiful was aided and abetted by Ansar, committed
the murder and gang rape of the victim. They entered into conspiracy
with Emamul, Bhutto and Bhola to cause disappearance of evidence to
screen themselves. However, no evidence is forthcoming with regard to
role of Amin, Nuro, Rafiqul in that regard.
K. State appeal - whether acquittal of Nuro and Rafiqul is
justified:-
151. Apart from the evidence of P.W. 1 none of the witnesses have
mentioned the presence of Nuro and Rafiqul either at the Alaghor or
near the 8 bigha plot on the fateful day. Even P.W. 1 did not name
either of these appellants during his deposition on 27.09.2013 as the
persons who were sitting and playing cards when Ansar was locking the
gate of 8 bigha plot and Saiful was standing beside. After a lapse of four
months he named these appellants. He embellished his version and
named these appellants. No other witness disclosed the role of the
appellants in the crime. General statement that these accuseds used to
taunt women including the victim cannot be a ground to come to an
inference they entered into conspiracy or shared common intention with
others to commit rape and murder of the victim. Appreciation of
evidence by the trial Judge on this score is a reasonable one and cannot
be said to be perverse. If findings of the trial Court in support of
acquittal are reasonable and not perverse and backed by evidence on
record, the Court would be loath to interfere with the order of acquittal.
In addition thereto, I have independently appreciated the evidence on
record and I am convinced that the acquittal recorded by the trial Court
in favour of Nuro and Rafique does not call for interference.
L. Conclusion:-
i. Conviction:-
152. In light of the aforesaid discussion, I convict Saiful Ali for
commission of offences punishable under sections 376A, 376D, 302 and
120B/201 IPC and Ansar Ali for commission of offences punishable
under sections 376A/120B, 376D, 302/120B and 120B/201 IPC.
153. I convict Sk. Emamul Islam, Aminur Islam @ Bhutto and
Bhola Naskar @ Bholanath Naskar for commission of offence
punishable under section 120B/201 IPC. I acquit Sk. Emamul Islam,
Aminur Islam @ Bhutto and Bhola Naskar @ Bholanath Naskar of the
charge under section 376D IPC. I acquit Amin Ali of all the charges
levelled against him. I uphold the acquittal of Noor Ali @ Nuro and
Rafiqul Islam Gazi @ Rafique Gazi
ii. Sentence:-
154. Trial Judge had sentenced Ansar Ali, Amin Ali and Saiful Ali
to death and Sk. Emamul Islam, Aminur Islam @ Bhutto and Bhola
Naskar @ Bholanath Naskar to suffer life imprisonment till the end of
their natural life. Emamul, Bhutto and Bhola have been acquitted of the
offence under section 376D IPC. They have been found guilty for
commission of offence under section 120B read with section 201 IPC.
Maximum sentence for the said offence is imprisonment for seven years.
155. Sk. Emamul Islam, Aminur Islam @ Bhutto and Bhola Naskar
@ Bholanath Naskar have already suffered incarceration for more than
10 years. As they have suffered incarceration for a period more than the
substantive sentence, they are directed to pay a fine of Rs.10,000/-
each, in default, to suffer simple imprisonment for three months more.
Upon deposit of fine they shall be released from custody if not wanted in
any other case, upon execution of a bond to the satisfaction of the trial
Court which shall remain in force for a period of six months in terms of
Section 437A of the Code of Criminal Procedure.
156. Trial Court held the murder and rape was a pre-planned one.
Victim had scoffed at the appellants. Hence, they brutally raped and
murdered her. The Court noted the brutality of the offence by referring
to the injuries in the private parts of the victim.
157. With regard to the first issue I have disbelieved P.Ws. 14 and
15 who deposed with regard to the motive and conspiracy to commit the
crime. Hence, prior concert of the appellants to avenge on the purported
snub by the victim has not been proved.
158. With regard to the second issue the post-mortem doctor noted
two injuries in the vagina as follows:-
"(i) Contused lacerated wound ½" X ¼" vaginal tissue at 5'o clock
and 6'o clock position at posterior vaginal wall alongwith
evidence of tear of posterior fourchette;
(ii) Contused lacerated wound 2" X 1 ½" vaginal tissue on upper
part of left side of vagina extending upto the vault."
He opined that the injuries may be caused by forcible introduction of
penis. During cross-examination he clarified the post-mortem report
does not mention any internal injury on the abdominal part of the
victim. No injury on the external pelvic part was noted and depth of the
tear in the posterior fourchette, hymen and vaginal tissues is not noted.
159. Learned Lawyer for the complainant relied upon Mukesh and
Anr. vs. State (NCT of Delhi) and Ors.19 to argue the brutality of the
crime deserved death penalty. In Mukesh (supra) the victim and her
boyfriend had been assaulted with iron rods and kicks. Thereafter, she
was gang raped. She sustained bite marks on her face, lips, breasts and
genitalia and other parts of the body. Her entire intestine was perforated
and splayed. Her internal organs had been pulled out to murder her.
Though in the present case bruises on lips, injury in vagina and
extravasation of blood in the brain were noted, doctor opined death was
(2017) 6 SCC 1
due to smothering and injuries in the vagina were due to forcible sexual
intercourse. He did not mention the depth of the injury in the vagina
nor any injury in the abdominal or pelvic parts of the victim. This shows
the injuries on the victim cannot be compared with the extensive and
brutal injuries noted in Mukesh (supra) which was one of the prime
consideration for upholding death sentence in that case. This does not
mean that the offence of rape and murder on a defenceless girl is not a
grave and heinous one. The Court is called upon to make this macabre
comparison with regard to the nature of injuries to test the proposition
advanced on behalf of the State and the complainant that the brutality
of the crime deserved death penalty as in Mukesh (supra).
160. Since Bachan Singh vs. State of Punjab20 it is a settled
proposition in law that the gruesome nature of offence cannot be the
sole criteria to justify death penalty. A balance sheet must be drawn
between the aggravating and mitigating factors and after giving due
weightage to both, if the Court comes to a conclusion that there is no
possibility of reformation and rehabilitation of the convict and the
alternate sentence of life imprisonment is wholly foreclosed, death
penalty may be imposed. While discussing the mitigating factors,
Bachan Singh (supra) imposed a duty upon the State to lead evidence to
rule out the possibility of reformation and rehabilitation of the convict
as follows:-
"206. Mitigating circumstances.--*** *** ***
(1) *** *** ***
(1980) 2 SCC 684
(2) *** *** ***
(3) The probability that the accused would not commit
criminal acts of violence as would constitute a continuing
threat to society.
(4) The probability that the accused can be reformed and
rehabilitated. The State shall by evidence prove that the
accused does not satisfy the conditions (3) and (4) above."
[Emphasis supplied]
161. In Machhi Singh vs. State of Punjab21 the Apex Court held
before awarding death sentence the Court must answer the following
questions:-
"39. In order to apply these guidelines inter alia the following
questions may be asked and answered:
a) Is there something uncommon about the crime which
renders sentence of imprisonment for life inadequate and
calls for a death sentence?
(b) Are the circumstances of the crime such that there is no
alternative but to impose death sentence even after
according maximum weightage to the mitigating
circumstances which speak in favour of the offender?"
162. In Santosh Kumar Satishbhushan Barriyar vs. State of
Maharashtra22 the Apex Court warned against the propensity of
imposing death penalty by merely referring to the brutal and heinous
nature of crime and ignoring relevant mitigating factors. It held 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."
(1983) 3 SCC 470
(2009) 6 SCC 498
163. Elaborating the duty of a Court to satisfy itself with regard to
the mitigating circumstances, the Apex Court in Manoj And Others vs.
State of Madhya Pradesh23 laid down the following procedure:-
"Practical guidelines to collect mitigating circumstances
248. There is urgent need to ensure that mitigating circumstances
are considered at the trial stage, to avoid slipping into a retributive
response to the brutality of the crime, as is noticeably the situation
in a majority of cases reaching the appellate stage.
249. To do this, the trial court must elicit information from the
accused and the State, both. The State, must--for an offence
carrying capital punishment--at the appropriate stage, produce
material which is preferably collected beforehand, before the
Sessions Court disclosing psychiatric and psychological evaluation
of the accused. This will help establish proximity (in terms of
timeline), to the accused person's frame of mind (or mental illness,
if any) at the time of committing the crime and offer guidance on
mitigating factors (1), (5), (6) and (7) spelled out in Bachan
Singh [Bachan Singh v. State of Punjab, (1980) 2 SCC 684. Even
for the other factors of (3) and (4)--an onus placed squarely on the
State--conducting this form of psychiatric and psychological
evaluation close on the heels of commission of the offence, will
provide a baseline for the appellate courts to use for comparison
i.e. to evaluate the progress of the accused towards reformation,
achieved during the incarceration period.
250. Next, the State, must in a time-bound manner,
collect additional information pertaining to the accused. An
illustrative, but not exhaustive list is as follows:
(a) Age
(b) Early family background (siblings, protection of parents,
any history of violence or neglect)
(c) Present family background (surviving family members,
whether married, has children, etc.)
(d) Type and level of education
(2023) 2 SCC 353
(e) Socio-economic background (including conditions of
poverty or deprivation, if any)
(f) Criminal antecedents (details of offence and whether
convicted, sentence served, if any)
(g) Income and the kind of employment (whether none, or
temporary or permanent, etc.);
(h) Other factors such as history of unstable social
behaviour, or mental or psychological ailment(s), alienation
of the individual (with reasons, if any), etc.
This information should mandatorily be available to the trial court,
at the sentencing stage. The accused too, should be given the
same opportunity to produce evidence in rebuttal, towards
establishing all mitigating circumstances.
251. Lastly, information regarding the accused's jail conduct and
behaviour, work done (if any), activities the accused has involved
themselves in, and other related details should be called for in the
form of a report from the relevant jail authorities (i.e. Probation and
Welfare Officer, Superintendent of Jail, etc.). If the appeal is heard
after a long hiatus from the trial court's conviction, or High Court's
confirmation, as the case may be -- a fresh report (rather than the
one used by the previous court) from the jail authorities is
recommended, for a more exact and complete understanding of the
contemporaneous progress made by the accused, in the time
elapsed. The jail authorities must also include a fresh psychiatric
and psychological report which will further evidence the
reformative progress, and reveal post-conviction mental illness, if
any."
164. In deference to the aforesaid procedure report with regard to
the conduct of the appellants was directed to be produced by the
correctional home authorities before the Court. Report submitted by the
said authorities show conduct of Saiful and Ansar in the correctional
home is satisfactory. Report has also been filed on behalf of the defence
elaborating their family background, level of education and other
relevant factors which show that there is high possibility of reformation
and rehabilitation. Inspite of opportunity State has not submitted any
rebuttal material regarding these aspects. It has only argued that
appellants are anti-social elements who used to drink and tease girls
including the victim. As per evidence on record no criminal case far less
a conviction has been recorded against Saiful and Ansar.
165. In Mohd. Farooq Abdul Gafur v. State of Maharashtra24 the
Apex Court differing from the view expressed in Gurmukh Singh vs.
State of Haryana25 emphasizing on the wholesome principle of
presumption of innocence held criminal history of an accused in the
matter of sentencing ought to relate to conviction and not to mere
pendency of a criminal case. Thus, assumption of criminal history on
general statement of bad conduct without referring to pendency of prior
cases and conviction in respect thereof would run counter to the very
essence of presumption of innocence and fair procedure.
166. Other authorities cited by the State are factually
distinguishable. In Purushottam Dashrath Borate v. State of
Maharashtrathe26 victim had been gang raped and murdered by a cab
driver and his assistant who had been appointed by the victim's
company. It was held the offence was committed by persons in trust
and the same was a pre-meditated one. In the present case, these
(2010) 14 SCC 641
(2009) 15 SCC 635
(2015) 6 SCC 652
aggravating circumstances are absent. Saiful and Ansar cannot be said
to be persons in trust nor has the prosecution case of conspiracy and
prior planning have been proved beyond doubt.
167. Similarly, in Dhananjoy Chatterjee vs. State of West Bengal27
the convict was a person in trust, namely, the security guard of the
building where the victim resided. No such relationship between the
appellants and the victim has been demonstrated in the present case.
168. In the light of the aforesaid circumstances, I am of the opinion
the trial Court erred in awarding death penalty with reference to the
gravity of the offence alone. State has failed to prove conspiracy and
prior concert in the crime beyond reasonable doubt. It has also not led
evidence to rebut the possibility of reformation and rehabilitation. On
the other hand, conduct of the appellants in the correctional home is
satisfactory and other unrebutted materials before this Court gives rise
to a reasonable belief that there is high possibility of reformation and
rehabilitation of the appellants. Alternative punishment of life
imprisonment for the remainder of natural life is a more humane
substitute that adequately addresses societal concerns of recidivism.
169. In light of the aforesaid discussion, I am of the opinion
awarding death penalty to Saiful Ali and Ansar Ali is unwarranted and
the same is not confirmed.
(1994) 2 SCC 220
170. It is directed:-
Saiful Ali shall suffer:-
(i) Rigorous imprisonment for life which shall mean
imprisonment for the remainder of his natural life for the
offence under section 376A IPC;
(ii) Rigorous imprisonment for life which shall mean
imprisonment for the remainder of his natural life and fine of
Rs. 20,000/-, in default, imprisonment for two months more
for the offence punishable under section 376D IPC;
(iii) Rigorous imprisonment for life which shall mean
imprisonment for the remainder of his natural life for the
offence and fine of Rs. 20,000/-, in default, imprisonment
for two months more under section 302 IPC;
(iv) Rigorous imprisonment for seven years and fine of
Rs.20,000/-, in default, imprisonment for two months more
for the offence punishable under section 120B read with
201 IPC.
Ansar Ali shall suffer:-
(i) Rigorous imprisonment for life which shall mean
imprisonment for the remainder of his natural life for the
offence under section 376A read with 120B IPC;
(ii) Rigorous imprisonment for life which shall mean
imprisonment for the remainder of his natural life and fine of
Rs.20,000/-, in default, imprisonment for two months more
for the offence punishable under section 376D IPC;
(iii)Rigorous imprisonment for life which shall mean
imprisonment for the remainder of his natural life for the
offence and fine of Rs. 20,000/-, in default, imprisonment for
two months more under section 302 read with 120B IPC;
(iv) Rigorous imprisonment for seven years and fine of
Rs.20,000/-, in default, imprisonment for two months more
for the offence punishable under section 120B read with 201
IPC.
171. Sentences imposed on Saiful Ali and Ansar Ali shall run
concurrently.
172. Death Reference No. 2 of 2016 and CRA 108 of 2016, CRA
109 of 2016, CRA 110 of 2016, CRA 111 of 2016, CRA 133 of 2016
(CRAN 1 of 2023, CRAN 2 of 2023 and CRAN 3 of 2023), CRA 240 of
2016, CRR 2789 of 2014, CRR 3828 of 2014 [CRAN 1 of 2014 (Old No.
CRAN 4521 of 2014)] and GA 1 of 2016 are, accordingly, disposed of.
173. Period of detention suffered by the Saiful Ali, Bhola Naskar @
Bholanath Naskar, Sk. Emamul Islam, Ansar Ali and Aminur Islam @
Bhutto 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.
174. Appellant Amin Ali shall be forthwith released from custody, if
not wanted in any other case, upon execution of a bond to the
satisfaction of the trial Court which shall remain in force for a period of
six months in terms of Section 437A of the Code of Criminal Procedure.
175. A copy of the judgment along with L.C.R. be sent down to the
trial Court at once for necessary action.
176. Urgent Photostat certified copy of this judgment, 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
