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2011 DIGILAW 236 (CAL)

Jahangir Alam v. The State of West Bengal

2011-02-21

ASHIM KUMAR ROY, J.N.PATEL

body2011
JUDGMENT : ASHIM KUMAR ROY, J. 1. The death reference Case No. 3 of 2009 and the Criminal Appeals being C.R.A. No. 553 of 2009 and C.R.A. No. 569 of 2009, all are arising out of a common judgment and order passed by the Learned Additional Sessions Judge, Fast Track, 2nd Court, Malda, whereby the Learned Judge convicted the said two appellants, viz., Anarul Hoque and Jahangir Alam under Sections 302/34 of the Indian Penal Code, they were sentenced thereunder to death and to pay a fine of Rs. 50,000/-each in default to suffer rigorous imprisonment for 4 months. They were also convicted under Sections 376 (2) (g)/511/34 of the Indian Penal Code and sentenced to suffer half of the imprisonment for life and also under Sections 201/34 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for 7 years and to pay a fine of Rs. 2,000/-each and in default to suffer imprisonment for 15 days. While the Trial Court referred the matter to this Court for confirmation of sentence of death passed against the aforesaid two appellants, they also challenged their conviction and sentence by filing the aforesaid two statutory appeals. 2. It is the case of the prosecution that one Dipali Roy, aged about 12 years and the daughter of P.W. 1 Krishna Pada Roy as usual on July 28, 2006 at 9.30 a.m. in the morning went to her school Hiralal Balika Vidyalaya where she was a student of Class VI. At about 4 p.m. after the school was over she went straight to the house of one Manik Biswas at village Gandhara for taking her tuition and she left her coaching class at around 6.30 p.m. Since even after 7 p.m. she did not returned home, her parents started searching for her and at around 12 midnight her dead body was discovered in a partly concealed condition in a jute field. It is the further case of the prosecution that these two appellants and another, viz., Mithun Hoque used to tease her everyday and 1/2 days back the accused Jahangir Alam approached her with some immoral sex act and on the fateful day between 4/4.30 p.m. the accused Jahangir Alam, Anarul Hoque and Mithun Haque were found roaming in and around the place of occurrence. After the arrest of Jahangir Alam, according to the prosecution the said accused made a statement to the police and led to the discovery of a spade which they used for digging earth to make a pit to bury the dead body. It was the further case of the prosecution that before she was killed the accused persons violated her. 3. Following the discovery of the dead body, the P.W. 1 who happened to be the father of the victim reported the incident in writing to the local police station, whereupon a case under Section 376 (2) (g)/302/201/34 of the Indian Penal Code was registered against the three accused persons. The police after completion of investigation also submitted charge sheet against all the accused persons for the self-same offences. However, the case of the accused Mithun Haque was splited from the case of the accused Jahangir Alam and Anarul Hoque as he was found to be a juvenile on the date of the commission of the offence. 4. Thereafter the accused Jahangir Alam and Anarul Hoque were placed on trial before the Learned Additional District & Sessions Judge, Fast Track, 2nd Court, Malda to answer charges under Sections 376 (2)(g)/302/201/34 of the Indian Penal Code. 5. This is a case where none has seen the occurrence in which according to the prosecution the victim girl after being raped was killed and then buried in a jute field. The prosecution based its case entirely on circumstantial evidence. It appears from the submissions made before us by the Learned Public Prosecutor that following are the circumstances on which the prosecution case is based:- (a) The accused persons used to tease the victim girl. (b) 1/2 days before the incident the accused Jahangir Alam approached the victim girl for some immoral sex act. (c) On the date of the alleged incident at around 4/4.30 p.m. the accused persons were found together near the jute field. (d) None of the accused persons were present, while the entire village was searching for the victim girl. (e) Pursuant to the statement of accused Jahangir Alam a spade was recovered which was used for digging the grave where her dead body was concealed. (f) On the date of the alleged occurrence at about 7 p.m. the P.W. 11 Phulmani Sarkar found the accused Jahangir to enter his house with a spade on his shoulder. 6. (e) Pursuant to the statement of accused Jahangir Alam a spade was recovered which was used for digging the grave where her dead body was concealed. (f) On the date of the alleged occurrence at about 7 p.m. the P.W. 11 Phulmani Sarkar found the accused Jahangir to enter his house with a spade on his shoulder. 6. During the trial on behalf of the prosecution total 24 witnesses were examined but defence examined none. It appears from the trend of cross-examination and the answers given by the accused persons in their examination under Section 313 of the Code of Criminal Procedure that they were innocent and have been falsely implicated in this case. 7. The Learned Counsel appearing on behalf of the appellants vehemently urged where a case is based on circumstantial evidence, all the circumstances has to be proved beyond all reasonable doubts and same must be compatible only with the guilt of the accused and not with innocence of the accused. He further submitted mere suspicion however strong cannot take place of proof. According to him it does not transpire from the medical evidence that before her killing any attempt was made to sexually assault her. It is vehemently urged that the prosecution has not led any evidence that just before her death the victim was found alive for the last time in the company of the appellants and it is a case of no evidence and the appellants are entitled to acquittal. The learned Counsel of the appellants in support of his submissions relied on two decisions, one is in the case of Sarwan Singh Rattan Singh Vs. State of Punjab, reported in AIR 1957 SC 637 and another is K. T. Palanisamy Vs. State of Tamil Nadu, reported in (2008) 1 SCC 627. 8. On the other hand, the learned Public Prosecutor vehemently urged before this Court that the facts, the appellants used to tease the victim girl and 1/2 days before the occurrence approached her with some immoral sex proposals and the fact soon before the incident they were found near the place wherefrom her dead body was discovered and the recovery of the spade at the instance of one of the accused clearly indicate that they were very much involved in the commission of the alleged offences. However, the learned Public Prosecutor in his usual fairness submitted that no case is made out justifying conviction of the appellants under Section 376 (2) (g)/511 of the Indian Penal Code as well as for sentencing them to death. Consequently, there is no dispute that the victim suffered a homicidal death. 9. Now, having gone through the deposition of the P.W. 15 Dr. Debnath Sarkar, who held post mortem for the dead body, we have no doubt that before she was killed there was no attempt on the part of the killers to assault her sexually. However, it is the evidence of the doctor that the death was due to the effect of anti mortem strangulation and is homicidal in nature. In this connection it is pertinent to note the defence has not challenged such findings of the post mortem doctor as regards to the cause of death. 10. We have heard the Learned Counsels appearing on behalf of the parties, Considered their respective submissions and the case laws cited by them. We have also very carefully perused the deposition of the witnesses and other materials on record. 11. Admittedly, this is a case based entirely on circumstantial evidence. There is no dispute when a case is based solely on the circumstantial evidence, the Court has to be satisfied that; (i) The circumstances from which conclusion of guilt is to be drawn has been fully established. (ii) All the facts so established are consistent only with the hypothesis of the guilt of the appellants and they do not exclude any other hypothesis except the one sought to be proved. (iii) The circumstances on which reliance has been placed are conclusive in nature. (iv) The chain of evidence in the case is such that there is no scope for any reasonable ground for a conclusion, which is consistent with the innocence of the accused. 12. So far as the first circumstance that the accused persons used to tease the victim girl and she was approached by the accused/appellant Jahangir Alam with a proposal for immoral sex act just 1/2 days before the occurrence, we find that no such allegation has been made in the First Information Report lodged by the P.W. 1, the father of the victim girl, although made by the said witness while deposing in Court. On a careful scrutiny of the First Information Report we further find the P.W. 1, the informant has expressed his strong suspicion about the involvement of the present appellants and another in the incident as according to him the said persons are very notorious. However, there was no allegation that he doubted them because they used to tease her daughter and also found in and around the place of occurrence sometime before the victim girl was killed, in our opinion this omission cannot be equated with a minor discrepancy and the same is on very vital material aspect of the case and accordingly it will not at all be safe to act thereupon. Apart from everything, in our opinion, such circumstances cannot be accepted as a piece of circumstance which beyond all reasonable doubts pointing towards the guilt of the accused. 13. Coming to the next circumstance that on the date of the alleged incident at around 4/4.30 p.m. the accused persons were found near the jute field, wherefrom the dead body of the victim was discovered, we find from the evidence of the private tutor of the victim girl P.W. 7 Manik Biswas that on that particular day the victim took her tuition till 6 p.m. in the evening. Therefore, the accused persons were found near the jute field nearly two hours before the victim left from her coaching class, in our opinion cannot be used as a circumstance pointing their involvement in the commission of the crime. 14. Now, coming to the next circumstance relied upon by the prosecution that when the entire village was engaged in searching of the victim girl and when the dead body was exhumed the appellants were not present there, in our opinion cannot also be accepted as one of the clinching circumstance pointing towards their guilt. The circumstances that a spade was recovered at the instance of the appellant Jahangir Alam from his house pursuant to his statement and being led by him cannot also be brought within the purview of Section 27 of the Evidence Act, inasmuch as the recovery memo bears no signature of the said accused, nor his statement which leads to such recovery. The facts the seizure list does not bear the signature of the accused also creates doubt as to the authenticity of the same and same cannot at all be safe to act upon. The facts the seizure list does not bear the signature of the accused also creates doubt as to the authenticity of the same and same cannot at all be safe to act upon. The evidence of P.W. 11 Phulmani Sarkar that on the date of the alleged incident at around 7 p.m. the accused Jahangir Alam was found having a spade on his shoulder to enter his house cannot be of much credence, inasmuch as the witness disclosed the said facts nearly two months after the alleged incident. Furthermore, while according to P.W. 11 Phulmani Sarkar that she found accused with the spade at around 7 p.m., it is the prosecution case the victim left the residence of her private tutor between 6/6.30 p.m. Therefore, we are not inclined to accept the prosecution story that within such a short span of time, between 6.30 to 7 p.m. the victim was kidnapped, dragged to the jute field, attempt was made to ravish her, then she was killed, the spade was brought by the accused Jahangir Alam from his house, the grave was dug, then the dead body was buried and thereafter he returned home with the said spade. 15. It is well known that in a case based on circumstantial evidence the motive of crime placed a very important role. In the case at hand, it is the prosecution case the motive behind the killing of the victim girl was that after she being sexually assaulted by the accused persons, the said accused persons killed her as they are afraid otherwise the victim girl would disclose everything to others. However, in this case no material has been brought on record to show that before victim was killed any attempt was made to sexually assault her. Thus, the motive suggested by the prosecution behind the commission of the crime stands completely dislodged. 16. For the reasons stated above, in our considered opinion, the circumstances on which the prosecution relied upon to draw the conclusion of guilt against the appellants has not been fully established as the same are neither been proved beyond all reasonable doubts, nor supports the only hypothesis of the guilt of the appellants. In the result, these appeals succeed and order of conviction and sentence is set aside. The death reference is rejected. In the result, these appeals succeed and order of conviction and sentence is set aside. The death reference is rejected. The appellants, who are now in jail at once be released therefrom unless are wanted in connection with any other case.