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2005 DIGILAW 306 (CAL)

SAGAR SAHA @ SALIM SK v. STATE OF WEST BENGAL

2005-05-05

ALOK KUMAR BASU, PRANAB KUMAR DEB

body2005
BASU, J. ( 1 ) THE learned Sessions Judge, Cooch-Behar commenced sessions Trial No. 4 (6) of 2004 corresponding to Sessions Case No. 83 of 2004 with five persons namely, Sagar Saha @ Salim Sk. , Nagen Das, bibhuti Mohan Sarkar, Parul Talukdar @ Saha and Rajubala Talukdar. Amongst the five persons, the learned Judge framed charges under Section 364/34 of the I. P. C. against Sagar Saha @ Salim Sk. , Nagen Das, Bibhuti mohan Sarkar and under Section 302/34 and 201/34 of the I. P. C. against all the five persons and also a charge under Section 14 of the Foreigners' act against Sagar Saha @ Salim Sk. ( 2 ) THE learned Judge after conclusion of trial found Sagar Saha @ salim Sk. and Nagen Das guilty under Section 364/34 of the I. P. C. and sagar Saha @ Salim Sk. , Nagen Das, Parul Talukdar @ Saha and Rajubala talukdar guilty under Section 302/34 of the I. P. C. The learned Judge recorded an order of acquittal against all the accused persons under Section 201/34 of the I. P. C. and he also recorded an order of acquittal under Section 14 of the Foreigners' Act against Sagar Saha @ Salim Sk. The learned judge also acquitted Bibhuti Mohan Sarkar of all the charges. ( 3 ) THE learned Judge after convicting Sagar Saha @ Salim Sk. both under Sections 364/34 and 302/34 of the I. P. C. imposed death sentence against him under Section 302/34 of the I. P. C. which resulted the present reference before this High Court being Death Reference No. 2 of 2004. The learned judge, however, did not impose any separate sentence under Section 364/34 of the I. P. C. against Sagar Saha @ Salim Sk. and Nagen Das. ( 4 ) THE learned Judge sentenced Nagen Das, Parul Talukdar @ Saha, rajubala Talukdar to suffer rigorous imprisonment for life under Section 302/34 of the I. P. C. ( 5 ) NAGEN Das, Parul Talukdar @ Saha and Rajubala Talukdar preferred Criminal Appeal No. 39 of 2005 challenging their order of conviction and sentence and we have taken up both the death reference and also the criminal appeal together for disposal by the present judgment. ( 6 ) IT is significant to mention that Sagar Saha @ Salim Sk. has not preferred any appeal against his conviction and death sentence. Mr. ( 6 ) IT is significant to mention that Sagar Saha @ Salim Sk. has not preferred any appeal against his conviction and death sentence. Mr. R. B. Mahato along with his junior Mr. Aslam Khan have been engaged from the state panel to represent the appellants before us in connection with the crriminal appeal and as no separate appeal has been preferred by Sagar saha @ Salim Sk. and as while disposing of the death reference, we are required to look into the legality and propriety of both the order of conviction and order of sentence, we have engaged Mr. Mahato along with his junior to represent the case of Sagar Saha @ Salim Sk. in connection with the death reference case. ( 7 ) THE prosecution case which resulted the filing of the present appeal and the death reference is that Sagar Saha along with Nagen Das came to reside in the house of defacto-complainant Smt. Uma Dey at Baisaguri, new Cooch-Behar under P. S. Kotwali as tenant sometime in the year 2003. On 11th May, 2003 Sagar Saha @ Salim Sk. on the pretext of taking the son of Uma Dey for showing him the Royal Palace at Cooch-Behar, took the boy with him at around 10 A. M. on that day and thereafter Sagar Saha @ Salim Sk. did not come back. Sagar Dey was only son of Uma Dey and he was aged at about 10 and a student of Class-IV. As Uma Dey and his relatives had the information that Sagar Saha @ Salim Sk. used to stay also at Bhowraguri under P. S. Gosaigaon in the district of Cockrajhore in the State of Assam, where he had his father-in-law's house, father of Sagar dey went there in search of his son, but, without getting any information he came back. Thereafter uncle of Sagar Dey along with his neighbours again went to Bhowraguri and there with the help of local people they intercepted Sagar Saha @ Salim Sk. along with one Nagen Das and when both of them were handed over to the local P. S. , the local police also detained Parul Talukdar @ Saha wife of Sagar Saha @ Salim Sk. along with one Nagen Das and when both of them were handed over to the local P. S. , the local police also detained Parul Talukdar @ Saha wife of Sagar Saha @ Salim Sk. and her mother Rajubala along with one Bibhuti Mohan Sarkar and on the basis of statement given by those five persons before the police officer, the dead body of Sagar Dey was recovered from the septic tank of a latrine of the house of Rajubala in presence of accused persons, police officers, one executive Magistrate and other local people. ( 8 ) ON the basis of written complaint of Smt. Uma Dey, a specific case was started and after bringing all the accused persons to Cooch-Behar from Assam and after collecting all materials, the investigating officer, finally submitted charge-sheet against all the five persons. ( 9 ) DURING trial, the prosecution examined 20 witnesses and placed the inquest report, the post mortem report, seizure lists, statement of the witnesses recorded under Section 164 of the I. P. C. along with some photographs taken during recovery of the dead body of the victim boy. ( 10 ) DURING examination of the accused persons under Section 313 of the Cr. P. C. after completion of prosecution evidence, Sagar Saha @ salim Sk. confessed his involvement regarding taking of the minor boy from the custody of his parents, but, he shifted the responsibility regarding murder of the boy and concealment of his dead body on his wife Parul talukdar and her mother Rajubala. ( 11 ) THE learned Sessions Judge, Cooch-Behar after considering the prosecution evidence both oral and documentary and after hearing submissions of the prosecution side and the accused persons came to the conclusion that both Sagar Saha @ Salim Sk. and Nagen Das kidnapped sagar Dey from Cooch-Behar and brought him to Bhowraguri in the State of Assam with the ulterior motive of taking ransom from the guardians of the minor boy or to sell him elsewhere and the learned Judge came to the further conclusion that Sagar Saha @ Salim Sk. , Nagen Das, Parul Talukdar @ Saha and Rajubala sharing a common intention killed the minor boy sagar Dey and kept his body concealed within the septic tank of a latrine. The learned Judge, however, did not find any evidence of either kidnapping or murder against Bibhuti Mohan Sarkar. , Nagen Das, Parul Talukdar @ Saha and Rajubala sharing a common intention killed the minor boy sagar Dey and kept his body concealed within the septic tank of a latrine. The learned Judge, however, did not find any evidence of either kidnapping or murder against Bibhuti Mohan Sarkar. The learned Judge, therefore, recorded order of conviction under Section 364/34 against Sagar Saha @ salim Sk. and Nagen Das and under Section 302/34 against Sagar Saha @ Salim Sk. , Nagen Das, Parul Talukdar @ Saha and Rajubala Talukdar. ( 12 ) WE have already indicated that in this judgment we are to consider both the appeals preferred by the appellant Nagen, Parul, Rajubala and also the propriety and legality of the conviction order and order of sentence recorded against Sagar Saha @ Salim Sk. who is facing death sentence by the order of the learned Trial Judge. ( 13 ) THE learned Advocate appearing for the appellants submits before us with reference to the evidence on record that neither in the written complaint of Uma Dey nor in the statement of the relatives of the minor boy Sagar Dey name of Nagen Das transpired so as to implicate Nagen das for the offence of kidnapping. The learned Advocate submits that in the written complaint of Uma Dey it was specifically disclosed that Sagar saha @ Salim Sk. took the minor boy with him and since then the boy did not come back. The learned Advocate submits that all the witnesses who have been examined for the prosecution to prove the offence of kidnapping have stated in one voice that Sagar Saha @ Salim Sk. was the man who took the minor boy with him and it has also come from the witnesses of bhowraguri that they noticed one minor boy with Sagar Saha @ Salim Sk. ( 14 ) THE learned Advocate contends that the prosecution case as it appears from the trend of evidence has got two definite parts, one relating to taking away of the minor boy from Cooch-Behar and the second and significant part was recovery of the dead body of the minor boy from the septic tank of a latrine belonging to Rajubala. The learned Advocate contends that there is no evidence to indicate the circumstances under which the minor boy was killed, but, from the prosecution evidence it appears that the body of the minor boy was recovered from the septic tank pursuant to the statement made on behalf of the appellants along with sagar Saha @ Salim Sk. ( 15 ) THE learned Advocate contends that from the statement of all the witnesses of Bhowraguri who were present at the time of recovery of the dead body, the only thing is available that all the appellants were present at the time of recovery of the dead body and all the appellants made a statement that the dead body was kept concealed inside the septic tank of latrine. The learned Advocate submits with force that not a single witness of Bhowarguri has stated that in their presence any of the appellant made any statement confessing their role regarding the murder of the minor boy or regarding the concealment of his dead body inside the septic tank. ( 16 ) THE learned Advocate contends that only the police officer of assam and the investigating officer of Cooch-Behar P. S. deposed in Court that the appellants along with Sagar Saha @ Salim Sk. made their statement before these police officers confessing their guilt about murder of the minor boy and about concealment of his dead body inside the septic tank of a latrine. The learned Advocate contends that the settled position of law is that statement of accused person made while in police custody before a police officer is not admissible at all and such statement cannot be used against the accused persons to hold them guilty and the Trial Court to sustain an order of conviction must search for reliable and independent evidence and that is the requirement of our system of criminal trial. ( 17 ) THE learned Advocate contends that scanning the entire evidence on record nothing has come out to indicate that save and except the alleged confessional statement of the appellants given before the police officers there is any other evidence to implicate any of the appellant forthe offence of murder of the minor boy. ( 18 ) AS regard Sagar Saha @ Salim Sk. , the learned Advocate Mr. ( 18 ) AS regard Sagar Saha @ Salim Sk. , the learned Advocate Mr. Mahato submits that so far evidence on record is concerned, there is ample evidence on record to indicate that Sagar Saha @ Salim Sk. was the man who took the minor boy with him from his residence at Cooch-Behar and sagar Saha @ Salim Sk. brought the minor boy to Assam and when the dead body of the minor boy was recovered and when the minor boy left the custody of his guardians in the companion of Sagar Saha @ Salim sk. , Sagar Saha @ Salim Sk. alone was responsible to explain the circumstances leading to the tragic death of the minor boy. The learned advocate contends that from the evidence on record there is nothing to hold that Sagar Saha @ Salim Sk. killed the minor boy, but, from the conduct of Sagar Saha @ Salim Sk. and from subsequent recovery of the dead body of the minor boy at the instance of Sagar Saha @ Salim Sk. , it must be held that Sagar Saha @ Salim Sk. was responsible both for kidnapping and also for murder of the minor boy. ( 19 ) MR. Mahato, however, submits that as in this particular case there is no direct evidence to hold Sagar Saha @ Salim Sk. responsible for murder of the minor boy and when there is nothing on evidence to indicate that Sagar Saha @ Salim Sk. demanded any ransom from the parents of the minor boy and when there is no evidence on record to indicate that he made any attempt to sell the minor boy. although Sagar Saha @ Salim sk. was responsible for kidnapping and murder, his case cannot be treated as rare of the rarest cases so as to warrant imposition of capital punishment and considering the entire fact, evidence and considering the circumstances, proper justice would be done if he is sentenced to suffer rigorous imprisonment for life. ( 20 ) THE learned P. P. submits before us that the incident narrated in the FIR and the fact leading to recovery of the dead body of the minor boy was most tragic in nature and it exposed the barbaric and inhuman attitude of the person involved behind the crime. The learned P. P. submits that from the evidence on record both Sagar Saha @ Salim Sk. The learned P. P. submits that from the evidence on record both Sagar Saha @ Salim Sk. and Nagen das are found responsible for taking away the minor boy from his legal guardian and it is also available from evidence that the minor boy was brought to Assam and certainly the motive of the persons was not bona fide, but, they had certainly some sinister design behind their action either to claim a handsome ransom from the parents of the boy or to sell out the boy to a distant place for material gain. ( 21 ) THE learned P. P. submits that it has come out from the evidence of the witnesses of Bhowraguri that Sagar Saha @ Salim Sk. and Nagen das were detained in a distance place and from that place they were brought to the police station and along with them Parul and her mother 'rajubala were also detained and pursuant to their statement the police officer recovered the dead body of the boy from a septic tank of a latrine belonging to mother of Parul and in presence of one Executive Magistrate and local people and in presence of the accused persons and with their help and assistance the dead body was recovered from the septic tank. The learned p. P. contends that when the accused persons had the specific knowledge about the place of concealment of the dead body, it was most reasonable to hold that they were the persons who caused the death of the minor boy and this reasonable apprehension was proved to be correct from the statement of the accused persons given before the police officer of both assam and Cooch-Behar. The learned P. P. contends that having regard to the evidence on record and having regard to the answers given by Sagar saha @ Salim Sk. during his examination under Section 313 of the Cr. P. C. , the prosecution successfully proved its case that the appellants along with Sagar Saha @ Salim Sk. killed the minor boy and thereafter concealed his dead body inside the septic tank. ( 22 ) THE learned P. P. , therefore, submits that from the evidence on record the learned Judge had sufficient reason to hold Sagar Saha @ salim Sk. and Nagen Das guilty of the offence of kidnapping and also sagar Saha @ Salim Sk. killed the minor boy and thereafter concealed his dead body inside the septic tank. ( 22 ) THE learned P. P. , therefore, submits that from the evidence on record the learned Judge had sufficient reason to hold Sagar Saha @ salim Sk. and Nagen Das guilty of the offence of kidnapping and also sagar Saha @ Salim Sk. , Nagen Das, Parul and Rajubala guilty of the offence of murder. ( 23 ) THE learned P. P. was, however, of the view that having regard to the fact and evidence of the present case, the case of Sagar Saha @ salim Sk. cannot be brought within the parameter of rare of the rarest cases and considering this aspect, the sentence of death cannot be supported and Sagar Saha @ Salim Sk. should be sentenced to suffer rigorous imprisonment for life. ( 24 ) WE have perused the entire evidence on record and we have also considered submissions of both the learned Advocate for the appellants and also the learned P. P. From the evidence on record we find that Sagar saha @ Salim Sk. took out the boy from his house at Cooch-Behar and both in FIR and also from the statement of the relatives of the minor boy we get a clear picture that it was Sagar Saha @ Salim Sk. alone who took the boy and as Nagen Das used to stay with Sagar Saha @ Salim Sk. he just accompanied Sagar Saha @ Salim Sk. , but, from the subsequent conduct it cannot be stated that Nagen Das shared any intention of kidnapping the minor boy along with Sagar Saha @ Salim Sk. Thus, having regard to the entire evidence relating to kidnapping, we are of the firm view that Sagar Saha @ Salim Sk. alone was responsible for kidnapping of the boy and his intention was also mala fide one. ( 25 ) AT Bhowraguri the local people found Sagar Saha @ Salim Sk. with a minor boy and the relatives of the minor boy on the second attempt came to learn that Sagar Saha @ Salim Sk. brought the minor boy at the house of his father-in-law. The local people and the relatives of the minor boy did not find Sagar Saha @ Salim Sk. at the house of his father-in-law and Sagar Saha @ Salim Sk. brought the minor boy at the house of his father-in-law. The local people and the relatives of the minor boy did not find Sagar Saha @ Salim Sk. at the house of his father-in-law and Sagar Saha @ Salim Sk. was found at a distance place along with nagen Das who was his companion and thereafter Sagar Saha @ Salim sk. was brought to the police outpost. ( 26 ) FROM the evidence of the people of Bhowraguri we find that the dead body of the minor boy was recovered from the septic tank of a latrine belonging to one B. Talukdar who was father of Parul and husband of rajubala. ( 27 ) POLICE of Assam arrested Parul and Rajubala as local people disclosed that the minor boy was taken to their house, but, from the statement of the local witnesses of Bhowraguri we do not get anything to indicate that Parul and Rajubala ever gave any extra judicial confession regarding their involvement about detention of the minor boy or about his murder and concealment of his dead body. ( 28 ) THE two police officers one of Assam and another of Cooch-Behar only deposed in Court that Nagen, Parul and Rajubala gave a statement confessing their guilt about murder and concealment of the dead body and barring that statement given before the police officer, there is no other evidence on record to show that Nagen, Parul, Rajubala had any role in the detention of the minor boy or behind his murder and concealment of the dead body. ( 29 ) FROM the conduct of Sagar Saha @ Salim Sk. we get that his identity was mysterious, it was not certain which was his actual motherland and when he brought out the minor boy from Bhowraguri, he had no pious desire, but, he had the motive to sell out the boy and this was clear from his conduct and intention when dead body of the minor boy was recovered from the place over which Sagar Saha @ Salim Sk. had full access and it was quite natural that he was the man who led the police party to the place where the dead body was concealed and it was quite natural that to exonerate himself, he wanted to shift the burden of murder and concealment of the dead body upon Nagen, Parul, Rajubala and Bibhuti. had full access and it was quite natural that he was the man who led the police party to the place where the dead body was concealed and it was quite natural that to exonerate himself, he wanted to shift the burden of murder and concealment of the dead body upon Nagen, Parul, Rajubala and Bibhuti. ( 30 ) THE learned Judge while scanning the evidence did not find any material against Bibhuti, but, curiously enough acting on the statement of two police officers and finding no other evidence on record he held Nagen, parul and Rajubala guilty of murder and held Nagen guilty of kidnapping although there was no iota of evidence to implicate Nagen for the offence of kidnapping along with Sagar Saha @ Salim Sk. ( 31 ) THUS, after analysing the entire evidence on record, we are of the firm view that there was ample evidence on record that it was Sagar saha @ Salim Sk. who kidnapped-the minor boy from his legal guardians and brought the minor boy to Bhowarguri in the State of Assam with the ulterior motive of either claiming for ransom or for selling out the boy and when the boy was in his custody and when the boy met the homicidal death, it was Sagar Saha @ Salim Sk. who must be held responsible for such homicidal death and when the dead body was kept concealed in the septic tank of the latrine belonging to the house of father-in-law of Sagar saha @ Salim Sk. , it must be held that Sagar Saha @ Salim Sk. was the man who kept the dead body concealed in such a manner. ( 32 ) AFTER scanning the entire evidence on record we do not find any evidence to hold Nagen Das guilty of the evidence of kidnapping and we also do not get any evidence on record to hold that Nagen, Parul, Rajubala were responsible for the death of the minor boy or they had any role whatsoever in the matter of concealment of the dead body. ( 33 ) THUS, in view of our above discussion and having regard to the submissions of both the sides, we are of the view that there is sufficient merit in the appeal preferred by Nagen, Parul and Rajubala and we are of the opinion that the learned Judge was not at all justified having regard to the evidence on record to pass the order of conviction under Section 364/ 34 of the I. P. C. against Nagen and under Section 302/34 of the I. P. C. against Nagen, Parul and Rajubala. ( 34 ) WE, therefore, allow the appeal and we are inclined to set aside the order of conviction passed by the learned Judge against the present appellants. ( 35 ) WE have already held that from the evidence on record and after hearing the learned Advocates, we are satisfied that Sagar Sana @ salim Sk. was guilty of both kidnapping and murder of the minor boy and accordingly, we find no difficulty to confirm the order of conviction recorded against Sagar Saha @ Salim Sk. both under Section 364 and Section 302 of the I. P. C. ( 36 ) NOW, on the question of sentence we find sufficient merit in the submissions of the learned Advocate Mr. Mahato which has not been opposed by the learned P. P. having regard to the fact and circumstances of the present case and we are also of the view that considering the fact and circumstances of the present case it cannot be said that the case comes within the parameter of rare of the rarest cases and accordingly, we are inclined to refuse to accept the death reference and we are of the opinion that the sentence of death should be modified to that of rigorous imprisonment for life and also to pay fine of Rs. 5,000/- in default to suffer rigorous imprisonment for two years. ( 37 ) WE, therefore, allow the Criminal Appeal and let all the appellants namely, Nagen Das, Parul Talukdar @ Saha, Rajubala Talukdar be released from jail forthwith if they are not wanted in connection with any other case and send a copy of this order at once to the Superintendent of Jail/ correctional Home where the appellants are lodged with a direction to release them forthwith. ( 38 ) SINCE we do not accept the death reference and since we modify the death reference to life imprisonment, inform the Superintendent of jail where the convict Sagar Saha @ Salim Sk. is lodged for taking necessary steps accordingly. Send a copy of this judgment along with LCR to the learned Sessions judge, Cooch-Behar at once for taking necessary follow up action pursuant to this judgment.