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2016 DIGILAW 110 (TRI)

State of Tripura v. Sanjoy Das alias Sadhu

2016-04-19

DEEPAK GUPTA, S.TALAPATRA

body2016
JUDGMENT : Deepak Gupta, J These two appeals are being disposed of by one judgment since they both arise out of the same judgment delivered by the learned Additional Sessions Judge, North Tripura, Kamalpur in Sessions Trial (NT/KMP) 06 of 2012 decided on 27.9.2013 whereby he convicted the accused for having committed offences punishable under Sections 302, 325, 326 and 341 of IPC and sentenced him to undergo imprisonment for life and to pay a fine of Rs.50,000/-, in default of payment of fine to suffer further imprisonment for 1 year for the offence under Section 302 of IPC. The accused was also sentenced to undergo Rigorous Imprisonment (RI) for 5 years and to pay a fine of Rs.25,000/-, in default of payment of fine to suffer Simple Imprisonment (SI) for 6 months in respect of the offence under Section 325 IPC. Similarly, with regard to the offence under Section 341 IPC he was sentenced to undergo RI for 1 month. It was further ordered that in case any remission is granted by the Government under Section 432 Cr.P.C all the sentences shall run consecutively. No sentence was separately imposed for the offence under Section 326 IPC because that offence was already covered by the conviction and sentence under Section 302 IPC. Criminal Appeal (Jail) No.6 of 2014 has been filed by the accused challenging the judgment in question and Criminal Appeal No.3 of 2014 has been filed by the State praying that in this case death sentence be imposed upon the accused. 2. The prosecution story, in brief, is that the deceased Susmita Das along with her mother Rina Malakar(Das) and younger sister Sangita were going towards the Hararkhola S. B. School. The appellant waylaid these three ladies, wrongfully restrained them and thereafter, he attacked the mother Rina Malakar(das) with an umbrella and with a ‘ram dao’(a sharp edged long weapon) and then he assaulted the daughter Susmita with the ram dao inflicting may injuries on her. Due to the injuries sustained the left hand of Kumari Sushmita Das was amputated at the spot and three fingers of the right hand were also amputated at the spot. There was fracture of bone of the skull which finally led to the death of Kumari Sushmita Das on 27.8.2011. The accused was also charged with having caused grievous hurt on the person of Rina Das. 3. There was fracture of bone of the skull which finally led to the death of Kumari Sushmita Das on 27.8.2011. The accused was also charged with having caused grievous hurt on the person of Rina Das. 3. The prosecution examined as many as 40 witnesses and the learned trial Court after dealing with all the evidence in detail came to the conclusion that it has been proved beyond reasonable doubt that the accused caused the injuries upon Kumari Sushmita Das which were grievous in nature and which led to her death and therefore, convicted him for murder and sentenced him as aforesaid. 4. We have heard Mr. A Lodh, learned counsel for the accused appellant and Mr. A Ghosh, learned Public Prosecutor for the State. 5. There are two eyewitnesses to the occurrence. The first is the mother Smt. Rina Malakar(Das) and second is Sangita Das, the sister of the deceased. Before dealing with the other evidence it would be appropriate to deal with their evidence. According to Rina Malakar(Das) PW.2, on 23.8.2011 at about 6.00 a.m. in the morning she along with her daughters Sushmita(deceased) and Sangita were going towards College Chowmuhani as her daughters had to attend coaching classes. When she and her daughters reached near Hararkhola S. B. School the accused Sanjoy Das was standing on the road with an umbrella in his hand. He was wearing sunglasses. As soon as they reached the spot Sanjoy Das first gave a blow on the head of the mother with the umbrella. Then from inside the umbrella he pulled out a long dao and gave a blow to the mother. She resisted the blow but received a cut injury under the palm of the right hand. Sushmita was standing next to her and then accused gave a blow by dao on the hand of Sushmita, as a result of which her hand was amputated from the wrist and fell on the road. Thereafter the accused Sanjoy started giving indiscriminate blows over the body of Sushmita, as a result of which she received cut injuries on her head, near the ear, near the chest, over right hand in which two fingers were amputated and fell on the ground. Her younger daughter Sangita fled away from the spot. This witness started shouting and after some time her mother, mother-in-law, brother and other persons of the locality reached the place of occurrence. Her younger daughter Sangita fled away from the spot. This witness started shouting and after some time her mother, mother-in-law, brother and other persons of the locality reached the place of occurrence. She informed them about what had happened. Then the injured mother and injured daughter were shifted to the hospital at Kamalpur. From Kamalpur hospital they were referred to G.B.P Hospital. Her daughter died in the G.B.P Hospital on 27.8.2011 and Rina Malakar (Das) the witness was discharged from the hospital on 2.9.2011. After she returned from the hospital the police came to her house and recorded her statement. On 06.9.2011 her statement was also recorded before the Magistrate under Section 164 Cr.P.C. The witness identified the sunglasses and the umbrella (Exbts.1 and 2 respectively) in the Court room. 6. The witness also stated that in the month of May, 2010 probably on 7.5.2010 the accused had kidnapped her daughter Sushmita. Thereafter her husband had lodged a case against him in Kamalpur Police Station. The accused was arrested in connection with the said case and remained in jail for 3/4 months. Then he was released on bail. According to the witness, the accused threatened her daughter and therefore, she was escorting her daughter while proceeding to the coaching centre. The witness also identified the dao which was used to give the blow Exbt. M.O.4. The witness also identified the amputated hand of her daughter (Exbt. M.O.3) which was kept inside a jar. The witness stated that Sanjoy used to threaten her family that they should withdraw the case lodged against him for kidnapping of her daughter otherwise he would take strong action and in this regard she had lodged one complaint with the police on 13.8.2011. At the time when the witness gave the statement the cases against the accused were still pending. 7. In cross-examination she stated that when they were proceeding towards the coaching centre her daughter Sushmita was pushing a ladies bicycle. She also states that it takes about 10/15 minutes to reach Hararkhola S. B. School from her house. She states that her own daughter Sangita was 8/10 cubits ahead of her elder daughter Sushmita. A suggestion was put to her that on that day at 6.00 a.m. she was in the house of one Jhantu Rudrapaul. She denied the suggestion and stated that there was no Jhantu Rudrapaul in her locality. She states that her own daughter Sangita was 8/10 cubits ahead of her elder daughter Sushmita. A suggestion was put to her that on that day at 6.00 a.m. she was in the house of one Jhantu Rudrapaul. She denied the suggestion and stated that there was no Jhantu Rudrapaul in her locality. Thereafter the suggestions put to her are negative in nature. However, it is important to note that a suggestion was put to her that a Bangladeshi boy had kidnapped the daughter Sushmita to Bangladesh and married her. A suggestion was also put to her that she and her family members had assaulted the Bangladeshi boy with a dao and since then they had detained Sushmita in their house. A suggestion was also put to her that Sushmita was given blows by a Bangladeshi boy and died as a result of injuries received in the blows. 8. Sangita Das, the younger daughter, was examined as PW.3. She supported her mother and also stated that the accused Sanjoy Das was wearing sunglasses and had an umbrella in his hand. She was ahead of her mother and sister. She heard a sound and when she turned back she saw blood on the head of her mother. Then she saw Sanjoy Das bringing out a dao from the umbrella and then he gave a blow of the dao on her mother but her mother resisted the blow with her hand and received injuries on the palm of her right hand. Thereafter Sanjoy Das left the mother and attacked her sister Sushmita. First he gave her a blow on the left hand which was totally amputated from the wrist and fell down on the road. Her sister also fell on the road and Sanjoy started raining indiscriminate blows on her. Seeing this the younger girl who was aged about 13/14 years, ran away from the spot and went to the house of one Smt. Bakul Baidyakar and told Bakul Baidyakar and her son Swapan Baidyakar about what had happened. Thereafter, Swapan informed his maternal uncle Kartik Malakar about the occurrence on mobile phone. Then while she was proceeding to her house she met her grandfather Basuda Malakar and told him about the incident. Then she and her grandfather came to the place of occurrence. Her sister was lying on the road in an unconscious condition and bleeding profusely. Thereafter, Swapan informed his maternal uncle Kartik Malakar about the occurrence on mobile phone. Then while she was proceeding to her house she met her grandfather Basuda Malakar and told him about the incident. Then she and her grandfather came to the place of occurrence. Her sister was lying on the road in an unconscious condition and bleeding profusely. Then her mother and sister were taken to the hospital. This witness in cross-examination also states that it takes about 10/15 minutes to reach Hararkhola S. B. School from her house. She states that Kartik and Manju Malakar are her maternal uncle and also her neighbors. Her father was at home when the occurrence took place. There are houses near the Hararkhola S. B. School. She denied the various suggestions that no such occurrence had taken place. 9. Smt. Bakul Baidyakar was examined as PW.10 and stated that Sangita came to her house early in the morning and informed her that accused Sanjoy Das had assaulted her mother and sister Sushmita in front of Hararkhola S. B. School. She told her to go home by another alternative way and rushed to the place of occurrence where she found both Rina and Sushmita lying on the road with serious injuries. She also stated that when she reached the spot Rina told her that accused Sanjoy Das had inflicted injuries on her and Sushmita. In cross-examination, she denied the suggestion that she had not gone to the spot. She states that she was not interrogated by the police. 10. Sri Swapan Baidyakar S/o Sri Shankar Baidyakar was examined as PW.15. He knew the deceased and all her family members as well as the accused Sanjoy Das. According to him, about one and half years ago at about 6.30 a.m. PW.3 Sangita came to their house and informed that the accused Sanjoy Das had assaulted her mother and sister. Thereafter, he reported the matter to Sri Kartik Malakar on his mobile phone. He then went to the spot where a large number of persons gathered and even the police had reached there. In cross-examination, he denied the suggestion that Sangita Das had not come to his house. 11. Sri Kartik Malakar was examined as PW.7. He is the brother of PW.2 Rina Malakar(Das). He then went to the spot where a large number of persons gathered and even the police had reached there. In cross-examination, he denied the suggestion that Sangita Das had not come to his house. 11. Sri Kartik Malakar was examined as PW.7. He is the brother of PW.2 Rina Malakar(Das). He states that on 23.8.2011 PW.15 Swapan Baidyakar informed him over mobile phone that Sanjoy Das inflicted injuries on his sister Rina and his niece Sushmita in front of Hararkhola S. B. School. On receipt of the information he, his brother Manju and parents rushed to the place of occurrence and found Rina with bleeding injury on her hand and head. In cross-examination, he admits that Sanjoy Das had lodged a case against him and his brother Manju alleging that they had assaulted him on 10.1.2010. He states that he could not recollect the mobile number of Swapan Baidyakar but denied the suggestion that Swapan Baidyakar had not informed him about the occurrence. He also admits in cross-examination that a few days before the occurrence Sushmita had returned to her house from Bangladesh but he could not say whether she had got married in Bangladesh. 12. Here it would be pertinent to mention that the first information with regard to the occurrence is not the formally exhibited FIR but a G D entry report. Exbt.14 is extract of G.D entry No.1088 in Kamalpur Police Station. This entry is recorded at 6.45 hours and reads as follows : “Extract copy of GD in CW Kamalpur P.S GDE No.1088 Dt.23.8.2011. 0645 1088 Info note & O/C PS & staff Out. This time received a telephonic information from one Sri Biswajit Das S/o Sri Rajendra Das of Kararkhola P.S- Kamalpur and reported that one Sri Sanjoy Das of No.1 Kalachari assaulted Suhmita Das and her mother of Harrarkhola with a dao while they were going to College Chowmuhoni Coaching Centre immediately police presence require. The fact entired in G.D for reference. O/C PS and a team of officers and staff left P.S for enquiry the matter at Hararkhola. The fact entired in G.D for reference. O/C PS and a team of officers and staff left P.S for enquiry the matter at Hararkhola. Sd/- Duty Officer (ASI Subod D/Barma)” A bare perusal of this GD entry clearly shows that telephonic information was received from Biswajit Das that one Sanjoy Das of No.1 Kalachari assaulted Sushmita Das and her mother at Hararkhola with a dao while they were going to College Chowmuhani coaching centre and presence of police is required. This information clearly names the accused. This information also clearly states that the accused attacked Sangita and her mother. This information also clearly depicts the place of occurrence and, therefore, discloses all facts on the basis of which FIR should have been lodged by the police there and then. The police did not have to wait for any formal FIR to be lodged. In Tripura there is a practice of not lodging FIRs and waiting for the aggrieved party to file a complaint. This is highly improper. This case is a glaring example where the FIR should have been lodged on the basis of the telephonic information itself. This GD entry has been proved in accordance with law and the veracity of this G.D entry has not been questioned on behalf of the accused. 13. Sri Biswajit Das was examined as PW.17. He stated that he knew all the parties concerned. On the date of occurrence at about 6/6.15 a.m. while he was proceeding to the house of Uddhav Das he met Sukhendu Das(father of the deceased Sushmita) who told him that accused Sanjoy had cut down the hand of his daughter and then he informed the Kamalpur Police Station about the occurrence on his mobile. Thereafter he went to Agartala in connection with his business. In cross-examination, a suggestion was put to him that he did not ring up the police and that Sukhendu had not given him the number of the police or that Sukhendu did not tell him that the accused Sanjoy Das had cut down the hand of his daughter. He has denied all these suggestions. 14. Sri Sukhendu Das was examined as PW.5 and he states that his father-in-law Sachindra Malakar told his son Akash that accused Sanjoy had caused injuries to Rina and Sushmita on the road in front of Hararkhola S. B. School. He has denied all these suggestions. 14. Sri Sukhendu Das was examined as PW.5 and he states that his father-in-law Sachindra Malakar told his son Akash that accused Sanjoy had caused injuries to Rina and Sushmita on the road in front of Hararkhola S. B. School. Thereafter he and his son Akash rushed to the spot and found his wife and daughter with numerous injuries on them. His daughter was unconscious but Rina was conscious and she told him that accused Sanjoy Das had given blows with a dao to both her and her daughter. Thereafter the two injured ladies were taken to the hospital at Kamalpur and then referred to the G.B.P Hospital at Agartala. After 5 days his daughter Sushmita died in G.B.P Hospital without ever regaining her senses. His wife remained admitted in hospital at Agartala for 11 days and then came back to Kamalpur. The witness also stated that earlier Sanjoy Das had kidnapped his daughter Sushmita and therefore, he had lodged a kidnapping case against Sanjoy Das in which Sanjoy Das was arrested and detained for a period of 4 months. When Sanjoy Das was released on bail he used to threaten his daughter. 15. The father is also a witness to the seizure of various articles but in view of the statements of the witnesses it is necessary to refer to that portion of evidence. According to him, about half an hour time is required to reach College Chowmuhani on foot and that it takes about 10 minutes to reach College Chowmuhani from Hararkhola S. B. School. He denied the suggestion that his daughter had a love affair with a Bangladeshi muslim boy and went to Bangladesh with that muslim boy and married him. Suggestion put to this witness was that on 23.8.2011 his wife and daughter were attacked by such Bangladeshi boy. This witness denied the suggestion that accused Sanjoy Das had not kidnapped his daughter. He also denied the suggestion that due to enmity they had filed a false case against Sanjoy Das. This witness also proved the statement of his daughter Sushmita recorded under Section 164(5) Cr.P.C in the kidnapping case and the documents relating to kidnapping case were marked as Exbt.7 series. He denied the suggestion that these documents were false. 16. Formal FIR was lodged by PW.1, Smt. Ujjala Das at about 10.30 a.m. on the same date. This witness also proved the statement of his daughter Sushmita recorded under Section 164(5) Cr.P.C in the kidnapping case and the documents relating to kidnapping case were marked as Exbt.7 series. He denied the suggestion that these documents were false. 16. Formal FIR was lodged by PW.1, Smt. Ujjala Das at about 10.30 a.m. on the same date. This FIR has been scribed by Sri Manash Das PW.18. Here also the entire facts are stated. However, it would be pertinent to mention that Ujjala Das was not at the spot when the occurrence took place and most of her statement is hearsay. However, she did go to the place of occurrence and saw her daughter-in-law Rina and granddaughter Sushmita in an injured condition. She has also stated that the police came to the spot about more than one hour after the occurrence and then she submitted the complaint to the police. She has also stated that before the occurrence accused Sanjoy Das had earlier kidnapped her granddaughter Sushmita in connection of which a criminal case was pending against him and he was arrested and kept in jail for few months. Thereafter, he was released on bail and started threatening her granddaughter. 17. PW.4 Jayanta Baidyakar reached the place of occurrence at about 6.45 a.m. He found a lot of persons gathered and saw a portion of a hand and two fingers lying on the road. He saw other articles such as ladies umbrella, one long umbrella, a ladies cycle etc. scattered on the road. He is basically a witness to the recovery of the ram dao and according to him, in his presence the accused told the police that he had given blows of ram dao to Sushmita and her mother. This part of the statement is inadmissible in evidence. However, his later statement is that then the accused told the police that after committing the crime he had thrown the ram dao inside the pond of one Dilip Das at a distance of about 40/50 cubits from the place of occurrence. Thereafter 4/5 persons started searching the ram dao and Kajal Das brought out the ram dao from the pond. 18. Thereafter 4/5 persons started searching the ram dao and Kajal Das brought out the ram dao from the pond. 18. PW.6 Sri Kajal Das also makes a similar statement and according to him, after the accused Sanjoy told Darogababu that he had thrown the dao in the pond he along with 5/6 persons started searching for the dao in the pond and then he found the dao in the pond and handed over to the police. In cross-examination, he states that Sanjoy Das told the direction in which he had thrown the dao in the pond. 19. PWs. 8, 9, 11, 12, 13 and 20 are witnesses who reached the spot after the occurrence and saw various articles scattered and their evidence need not be discussed in detail. 20. PW.16 Sri Subir Deb is a Pradhan of the Hararkhola Gram Panchayet and he went to the hospital only. His evidence is also not very relevant. PW.18 Sri Manash Das reached the spot and has scribed the ejahar. PW.19 Sri Uddhav Das shifted the two injured ladies to Kamalpur hospital at the request of Sukhendu Das. PW.24 Sri Ashim Das is a witness to the inquest report. PW.27 Sri J R Datta has proved the statements of Smt. Rina Das(Malakar) and Sangita Das recorded by him under Section 164(5) Cr.P.C. PW.14 Smt. Usha Deb Barma(Lodh) is a staff nurse and her witness to the amputated left hand which was preserved by Dr. Anup Kr. Debnath in a glass Jar. 21. PW.32 Dr. Anjan Das was on duty at BSM Hospital, Kamalpur on 23.8.2011. PW.38 Dr. Narayan Paul was working in BSM Hospital, Kamalpur and he attended upon Sushmita Das and found that four fingers except thumb of the right hand had been amputated. Since the condition of the patient was serious he immediately referred her to G.B.P. Hospital, Agartala. He also examined PW.2 Rina Malakar(Das) and found one cut injury on her right hand and one lacerated cut injury on the head and also referred this patient to the G.B.P. Hospital, Agartala. 22. PW.28, Dr. Dilip Karmakar was posted as Medical Officer in G.B.P Hospital, Agartala. He attended upon Rina Malakar(Das) and stated that she remained in hospital till 02.9.2011 and he also proved the injury report of Rina Malakar. According to him, after CT Scan was done they found a fracture in the frontal bone of her head. 22. PW.28, Dr. Dilip Karmakar was posted as Medical Officer in G.B.P Hospital, Agartala. He attended upon Rina Malakar(Das) and stated that she remained in hospital till 02.9.2011 and he also proved the injury report of Rina Malakar. According to him, after CT Scan was done they found a fracture in the frontal bone of her head. The cut wound received by victim Smt. Rina Malakar(Das) was caused by a sharp object and the fracture of frontal bone on her head as detected in CT Scan was caused by blunt object. 23. PW.29 Dr. Pranab Choudhury conducted the post mortem on the body of Susmita Das. He has described the various injuries on the person of Sushmita Das as follows : “(1) Right hand four nos. fingers were chopped at the level of metacarpo phamengil joint in of little finger and ring finger at the level of almost mid part of proximal phalenge in core of middle finger and at the level of proximal interphelangial joint. In case of index finger wounds are surgically repaired with stitches. (2) Left hand is totally chopped in lower part of the forearm at the level of 23 cm below the elbow. Both bones of forearm along with blood vessels, muscles, nerves are chopped. Wounds are surgically repaired with stitches. (3) Surgically stitched wound with 3 nos. stitches present over the left side parietal emmitence measuring 2.5 cm in length. (4) Surgically stitched would present over the left side forehead extend up to front of the left external ear situated 2.5 cm. above the left eyebrow and medial and was 4.4 cm left to mid line with 10 nos. stitches measuring 14 cm in length. Bones corresponded to the injury are clearly cut. (5) Stitched wound on the right side head semicircular in shape involving right side temporal part of parietal and occipital region measuring 23 cm. in length, anterior end is 15 cm. from the right side supra orbital ridge. Bones correspond to the injury are clear cut and brain matter is also injured on temporal and part of parietal occipital lobe. (6) Stitched wound present on the right side parietal region measuring 6 cm. in length with 5 nos. stitches anterior and is 16 cm. above the right supra orbital ridge and 4 cm. right to midline. Bones correspond to the injury are clear cut and brain matter is also injured on temporal and part of parietal occipital lobe. (6) Stitched wound present on the right side parietal region measuring 6 cm. in length with 5 nos. stitches anterior and is 16 cm. above the right supra orbital ridge and 4 cm. right to midline. It is sagitally placed.” (7) Incised would present on the left side lateral aspect of chest 24 cm. below the tip of the left shoulder size 5 cm. in length with 5 nos. stitches.” He opined that all the above injuries were ante mortem in nature caused by a moderate heavy sharp edged weapon and the age of the injury was 4 to 5 days old at the time of death. According to him, the death was caused due to head injury caused by the moderate heavy sharp edged weapon and that injuries No.2, 3, 4, 5 and 6 are individually sufficient in the ordinary course of nature to cause death and when caused together would also lead to death. There was virtually no effective cross-examination of this witness. 24. PW.33 Dr. Sabyasachi Nath is the Scientific Officer in the State Forensic Science laboratory. He has proved the report Exbt.22 series and has found Blood Group ‘O’ on Exbts. A, B, C, E and Q. 25. We have dealt with the evidence in detail. We are clearly of the view that this is a case where prosecution has proved its case beyond any reasonable doubt. From the evidence led on record it is obvious that earlier there was an allegation that accused Sanjoy Das had kidnapped the victim Sushmita Das and taken her to Bangladesh. In fact he was convicted for having committed an offence punishable under Section 363 of the IPC by the Additional District and Sessions Judge, North Tripura Judicial District. Sanjoy Das filed an appeal being Criminal Appeal (J) No.5 of 2014 in this Court and one of us (S Talapatra, J) disposed of that appeal on 31.3.2015. The appeal filed by Sanjoy Das was allowed. It would be pertinent to refer Para 25 of the judgment which reads as follows: “25. It appears that the victim was not radio logically examined to ascertain her age. From Exbt.3, it appears that the date of birth of the victim was 28.01.1995. The appeal filed by Sanjoy Das was allowed. It would be pertinent to refer Para 25 of the judgment which reads as follows: “25. It appears that the victim was not radio logically examined to ascertain her age. From Exbt.3, it appears that the date of birth of the victim was 28.01.1995. Thus her age must be what her father has stated to be. Even the victim herself has stated to PW.18 that she was 17 years. It further appears that 11 Page 11 of 11 CRIMINAL APPEAL (J) No.05 f 2014 the victim did not raise any clam our or alarm while she was taken out or when she boarded the public transport, which paved through the crowded thoroughfare and from the statements made to her grand-mother that they lived like husband and wife, it appears clearly that she was a willing partner, even though her age was not 18 years.” Therefore, what this Court held was that Sushmita the victim had voluntarily gone with Sanjoy Das and there fore, even though she may not have been 18 years of age no offence under Section 363 of IPC was made out because according to her own admission, she was 17 years old. Therefore, there is a finding of this Court that the deceased Sushmita had run away with the accused. A case of kidnapping was lodged by her father Sukhendu against the accused. The accused was arrested and kept behind bars for about 4 and half months. Thereafter he was released on bail. It is also apparent from the evidence on record that thereafter the parents and other family members of Sushmita were keeping guard on her and not permitting her to meet the accused Sanjoy Das. This provides a clear motive to the crime. Sanjoy Das was obviously annoyed and suggested a strong motive to commit such a crime. 26. There are two witnesses in the case, PWs.2 and 3, who have in detail set out the manner of the occurrence and there is no reason to disbelieve their statements. The statement of PW.3 Sangita is corroborated by PW.10 Smt. Bakul Baidyakar and his son Swapan Baidyakar. We must remember that in the first information given to the police i.e. G.D entry No. 1088(Exbt.-14) the incident has been set out and the accused has been named. The statement of PW.3 Sangita is corroborated by PW.10 Smt. Bakul Baidyakar and his son Swapan Baidyakar. We must remember that in the first information given to the police i.e. G.D entry No. 1088(Exbt.-14) the incident has been set out and the accused has been named. The witnesses who reached the spot immediately after the occurrence state that Rina Das informed them that Sanjoy had committed the offence. The medical evidence fully corroborates the statements of the eye-witnesses. Rina has stated that the injury on her hand was inflicted with the umbrella. This is a blunt object. Thereafter Rina has stated that the injury on her palm was caused by a ram dao taken out from the umbrella. The injury on her palm is by a moderately heavy sharp edged weapon. All the injuries on the person of the deceased Sushmita are by a moderately heavy sharp edged weapon which totally tallies with the description of the ram dao. 27. The main arguments of Mr. A Lodh learned counsel for the accused appellant are (1) that the FIR was lodged 4 hours later and (2) that the Statement of Rina Das and other material witnesses were not recorded for almost 12/13 days, (3) that no independent witnesses were examined and (4) that he has pointed out certain contradictions in the statements of the witnesses including the fact that Sukhendu PW.5 in his statement does not state that he had told PW.17 Biswajit Das to ring up the police. These are minor omissions which may take place during the course of trial. In any criminal case when evidence is recorded after one and half or two years some small contradictions are bound to occur. In fact if there are no contradictions one would be surprised. In natural course of things when statements of witnesses are recorded after one and half years there is bound to be difference of 5/10 minutes in the timing given but the important aspect in this case is that there is no reason whatsoever to doubt the statements of the eyewitnesses. In fact, the suggestion put to the eyewitness on behalf of the accused is only that some other Bangladeshi muslim boy committed the offence. In fact, the suggestion put to the eyewitness on behalf of the accused is only that some other Bangladeshi muslim boy committed the offence. There is no other Bangladeshi muslim boy because this Court in Criminal Appeal (J) No.5 of 2014 has also come to the conclusion that Sushmita had willingly gone with Sanjoy Das to Bangladesh. This fact is also proved by the statements of all the family members. 28. The first argument of Mr. A Lodh was that FIR was lodged after 4 hours. As already held by us above the G.D entry should have been treated to be the FIR and we, accordingly, treated the same as an FIR. This was lodged immediately after the crime. The police may not have done its job properly. The police may have been wrong in not recording the FIR earlier but intimation has been given to the police immediately after the occurrence. Furthermore, delay in lodging the FIR is not a ground to acquit the accused. When there is delay in lodging the FIR the Court must scrutinize the evidence with greater care and caution to ensure that a false story has not been concocted to implicate the accused. As far as the present case is concerned, there was time to concoct a false story because Sangita went to the house of Smt. Bakul Baidyakar immediately after the occurrence and narrated the entire facts story. The second argument of Mr. Lodh is that the statement of Smt. Rina Malakar(Das) and Sangita was recorded after many days. We must keep in mind the fact that Rina Malakar(Das) was admitted in hospital for 11 days. She had lost her daughter in a gruesome murder which took place in front of her eyes. Her statement was recorded within a day or two of her returning back to Kamalpur hospital. Therefore, we find no inordinate delay in recording her statement or that of the other witnesses. The family members were all busy in first looking after Sushmita who died after 4/5 days and then looking after Rina Malakar(Das) who was admitted in hospital for 11 days. We, therefore, find no merit in the argument of Mr. Lodh which is rejected. The third argument was that no independent witnesses were examined. This argument is not totally true. A large number of witnesses have been examined who reached the spot after the occurrence. We, therefore, find no merit in the argument of Mr. Lodh which is rejected. The third argument was that no independent witnesses were examined. This argument is not totally true. A large number of witnesses have been examined who reached the spot after the occurrence. They are not witnesses to the crime but reached the spot after the occurrence took place. It is true that persons from the locality have not been examined but that does not in any way discredit the testimony of the eye-witnesses or the other persons who reached the spot soon after the occurrence. Therefore, this argument is also rejected. 29. Sanjoy Das was known to Rina and Sangita prior to the occurrence. He was identified at the place of occurrence itself and Sangita immediately after the occurrence rushed to the house of PW.10 Smt. Bakul Baidyakar and informed her and her son Swapan Baidyakar about the incident and specifically named Sanjoy Das. There was no time to create a new story. We must keep in mind that Sangita at the time of the occurrence was barely about 13 years old. She had been traumatized by seeing her mother and sister being attacked and would not have the time to create a false story to falsely implicate the accused. 30. We also see no reason why the parents of a young girl who was brutally murdered would wrongly name some other person as the perpetrator of the crime. In case Rina and Sangita had not seen the occurrence and the allegations were based on suspicion, then there could have been some doubt that because of past enmity a false case may have been foisted. However, here there are two eyewitnesses one of whom (the mother Rina) has herself suffered grievous injuries. The second witness i.e. the young girl Sangita ran away from the spot and reported the matter within 10/15 minutes of the occurrence had taken place. There is no reason why these two eye-witnesses should be disbelieved. Their statement has a ring of truth about it and can be fully relied upon to convict the accused. 31. The statement of these witnesses is corroborated by many other witnesses who came to the spot later on and what told by Rina that she and her daughter had been attacked by accused Sanjoy Das. Their statement has a ring of truth about it and can be fully relied upon to convict the accused. 31. The statement of these witnesses is corroborated by many other witnesses who came to the spot later on and what told by Rina that she and her daughter had been attacked by accused Sanjoy Das. The statement of these witnesses is also corroborated by the recovery of the ram dao. As observed earlier, the statement of the witnesses is also fully corroborated by the medical evidence. As far as the contradictions are concerned, as we have held above, the contradictions are very minor in nature and will not affect the merits of the case. Therefore, we find no merit in the appeal filed by Sanjoy Das and the same is accordingly dismissed. 32. As far as the appeal filed by the State is concerned, we are clearly of the view that this case does not fall within the category of rarest of the rare cases. The learned Additional Sessions Judge has delivered a very elaborate and detailed judgment dealing with the aspect of death sentence. He has, in fact, questioned the accused about all aspects and after considering entire law laid down by the Supreme Court including large number of judgments delivered by the Supreme Court has held that this is not a case where death sentence should be imposed. He has referred to the principles laid down by the Apex Court in Shankar Kishanrao Khade V. State of Maharashtra, 2013 AIR SCW 2668 and Gurvail Singh alias Gala & another V. State of Punjab, 2013 AIR SCW 1001 and after detailing the aggravating and mitigating circumstances of the present case held as follows: “12. Aggravating circumstances available in the present case: 1. The crime was no doubt heinous in nature. A girls aged about 17 years or less than that (as per Exhibit.31 her date of birth was 28.1.1995) was murdered in broad day light on successive blows by a sharp cutting weapon. 2. The offence was not however committed at the time of commission of any other serious crime. 3. The crime was no doubt heinous in nature. A girls aged about 17 years or less than that (as per Exhibit.31 her date of birth was 28.1.1995) was murdered in broad day light on successive blows by a sharp cutting weapon. 2. The offence was not however committed at the time of commission of any other serious crime. 3. This is not a case that the offence was committed with the intention to create a fear psychosis in the public at large but it was committed in a public place by a weapon or device which clearly could be hazardous to the life of more than one person. 4. It is also not a case that the offence of murder was committed for ransom or like offences to receive money or monetary benefits. 5. This is not a case of hired killings. 6. It also cannot be said certainly that the offence was committed outrageously for want only while involving inhumane treatment and torture to the victim. 7. It is also not a case that the offence was committed by a person while in lawful custody. 8. The murder was not committed, to prevent a person lawfully carrying out his duty like arrest or custody in a place of lawful confinement of himself or another. 9. The crime is also not enormous in proportion like making an attempt of murder of the entire family or members of a particular community. 10. This case is not case that the victim and the convict had a relationship of trust or that for that reason taking the advantage of that trust the convicted has committed the murder. However, it is true that the victim was a helpless minor girl. 11. However, the case can be categorized as a case of commission of offence in depravity and meanness, as the convict having his own wife and child had showed his lust towards the victim and also kept her under his custody for some months after kidnapping her and then being persuaded in the court of law committed the crime. 12. It cannot be said that it was a cool blooded murder, but it was pre-planned and without any provocation. 13. The crime is committed brutally, though not in its extremity, but it has shocked the conscience of the society. 13. Mitigating circumstances available in the present case: 1. 12. It cannot be said that it was a cool blooded murder, but it was pre-planned and without any provocation. 13. The crime is committed brutally, though not in its extremity, but it has shocked the conscience of the society. 13. Mitigating circumstances available in the present case: 1. The prosecution itself proved that before commission of the crime, the convict consumed poison and one empty container of poison was also found in the place of occurrence and the police authority also admitted him the hospital where he was treated for 3/4 days. In his statement before the Investigating officer prior to recovery (Exhibit-25) he expressed that he did not want to live. Further he stated that he gave proposal of marriage to Sushmita but he was refused and for her he even he had to remain behind the bar for about 4 months, but still Sushmita and her family members did not like him. Thus it appears that before commission of crime, he was totally mentally and emotionally disturbed for which he even consumed poison with an intention to commit suicide. 2. The age of the accused as per his statement u/s 313 Cr.P.C is 45 years, so the same is of no help to him. 3. The prosecution has proved that already in two cases, he was convicted though both the said cases were centering round Sushmita and her maternal uncle, however, in view of such previous conviction, his chance of reformation is lesser. 4. There is nothing to opine definitely that the convict was mentally defective and the defect impaired his capacity to appreciate the circumstances of his criminal conduct. 5. As it appears, the hatred and neglect of Sushmita and her family members ignited his impulse for commission of such crime, but it cannot be said that due to any persistent harassment, he committed such crime. 6. It cannot be said that the crime was committed in a pre-ordained manner and that the death resulted in the course of commission of another crime. 7. It is also not a case where it is absolutely unsafe to rely upon the testimony of a sole eye-witness though prosecution has brought home the guilt of the accused. 6. It cannot be said that the crime was committed in a pre-ordained manner and that the death resulted in the course of commission of another crime. 7. It is also not a case where it is absolutely unsafe to rely upon the testimony of a sole eye-witness though prosecution has brought home the guilt of the accused. So far as the R-R test is concerned, the case more or less passes that test as the society or the locality has been disturbed and shocked, as is found through different media publications. The general people of the locality are also showing their indignation and abhorrence towards the crime, especially for the dastardly manner of crime that one hand of the deceased was totally amputated on the wrist level.” Thereafter he has come to the conclusion that this is not a case where death sentence should be imposed. This is not a view taken by the learned trial Court without considering the law or the evidence. In fact, we place on record our appreciation for the manner in which the learned trial Court has dealt with this matter in detail. In an appeal for enhancement of sentence we would not like to impose a higher sentence unless the sentence imposed is very low. It is clear that that this is a crime of passion. It may have been pre-planned. It may be a gruesome murder but the fact remains that it does not fall in the category of rarest of the rare cases. Therefore, the appeal filed by the State is also dismissed. Both the appeals are dismissed. Send down the LCRs forthwith.