Himangshu Pahari, Appellant V. The State, Respondent.
DATE : 17-07-1985
1986-(092)-CRLJ -0622 -CAL
JUDGE(S) :
Manoj Kumar Mukherjee
Sankar Bhattacharyya
CALCUTTA HIGH COURT
JUDGMENT
SANKAR BHATTACHARYYA, J. :- Himangshu Pahari alias Ganesh, the
appellant before us, was arraigned before the learned Additional
Sessions Judge, 10th Court, Alipore to answer the following charges
:-
"First - That you along with two others on or about the 19th
day of September 1979 at P-294 C.I.T. Road, P. S. Beliaghata committed
robbery of one ladies wrist watch, portion of gold neck chain
fitted with stone, one gold Bauti, iron bangles covered with gold,
and thereby committed an offence punishable under S. 392 of the
I.P.C.
Secondly - That you along with two others on or about the same
date and at the same place in furtherance of common intention
of you all did commit murder by intentionally causing the death
of Sm. Khusirani Sukla, wife of Kapildeo Sukla, and thereby committed
an offence punishable under S. 302/34 of the I.P.C."
On conclusion of the trial, the appellant was convicted of both
the charges and sentenced to rigorous imprisonment for 5 years
for the first charge and to death for the second charge. The above
order of conviction and sentence is under challenge in this appeal.
Along with the appeal we have also heard the reference made by
the learned Additional Sessions Judge under S. 366(1), Criminal
Procedure Code, 1974 for confirmation of the death sentence. This
judgment will, therefore, govern both the appeal and the reference.
Short of details, the prosecution case is as under :
Kapildeo Sukla (P.W. 4), the husband of deceased Khusirani, was
a tenant of Flat No. 3 in the first floor of Premises No. P-294,
C.I.T. Road, Calcutta-10, under the landlord Anil Kumar Chanda
(P.W. 3). Kapildeo used to occupy the above flat with his wife
Khusirani, son Ranjit (P.W. 39) and daughter Sunita alias Buchi
(P.W. 38). At the material time Ranjit was a student in the night
section of the Umesh Chandra College, while Sunita was a student
of the M.V. Girls School at Park Circus. Kapildeo has a transport
business in Calcutta and Ranjit used to attend his father's office
at noon. They had a part-time maid servant named Lila alias Burima
who used to work in their flat in the morning and in the evening
Kapildeo left for Mirzapore on 15-9-1979 in connection with his
business and came to Calcutta on 21-9-1979 on receipt of the news
of his wife's murder.
2. On September 19, 1979 Sunita left for her school at or about
9 a.m. as usual and Ranjit also left for his father's office round
about the same time. At or about 2 p.m. the deceased's brother
Gopal Guha (P.W. 10), a resident of Calcutta, along with his friend
Swapan Roy (P.W. 13), paid a visit to his sister's flat. She was
alone in the flat at that time and during their talks with her
they came to know from her that her refrigerator had gone out
of order.
3. While they were talking with the deceased, there was tapping
on the door of the flat. The deceased, after peeping through the
eyehole of the door opened it when three men entered the flat.
One of them wearing a printed shirt and carrying a khaki bag started
conversation with the deceased over the repair of her refrigerator.
After a while, Gopal and his friend left the flat while those
three men remained inside.
4. Sunita came back from her school at or about 4 p.m. and found
the door of their flat closed with the latch fixed on its outer
side. She opened the door and going inside the flat found her
mother lying in a pool of blood in the dining room near the refrigerator.
The windows were closed, the almirah was open and the flat appeared
to have been ransacked. She repeatedly called her mother but getting
no response from her, rushed to Flat No. 2 occupied by Bhagawati
Prosad Kejiriwal (P.W. 7) and told everything to his wife Sarala
Debi (P.W. 24). She at once came to the deceased's flat with her
cook Basanti (P.W. 30) and Sunita and found the deceased lying
in a pool of blood in the dining room near the refrigerator. She
then locked the door of the flat and advised Sunita to inform
her elder brother Ranjit about the incident over phone.
5. Thereafter Sunita went to the flat of her friend Sunita Lohatia
(P.W. 25) at Premises No. P-293, C.I.T. Road and reported the
incident to Ranjit over phone. Meanwhile local people started
collecting in front of Premises No. P-294, C.I.T. Road and the
landlord, being frightened, sent a telephone message to the local
police station to the effect that a disturbance was going on at
the said premises. The message was diarised by J. Giri (P.W. 28),
Assistant Sub-Inspector of Police and Head Constable B. B. Ghosh
(P.W. 29) was deputed to the spot with a force to maintain peace.
6. After a while, Sub-Inspector S. K. Ghosh (P.W. 40) of the Beliaghata
Police Station went to Premises No. P-294, C.I.T. Road with a
force to work out the information. There he met Ranjit and recorded
his statement which was treated as the first information report.
Sub-Inspector Ghosh took up investigation and entering the flat
found the deceased lying on the floor of the dining room near
the refrigerator in a pool of blood. The almirah which was open
was found ransacked and household articles lay scattered all over
the flat. A local Doctor (P.W. 6) was called who, after examining
the deceased, declared her to be dead.
7. The police photographer took photograph of the dead body and,
after inquest the body was sent to the morgue for post-mortem
examination. Various articles including blood stained hairs, one
blood stained printed full sleeve shirt with five buttons missing,
one blood stained Khaki cloth bag, several nylon buttons, a portion
of a torn gold neck chain studded with two red stones, one Rampuria
knife etc. were seized under different seizure lists and several
witnesses were examined. Later on, the investigation was taken
up by the Homicide Squad of the Detective Department of Calcutta
Police.
8. The appellant, alleged to be the husband of Kalpana an ex-maid
servant of the deceased, was arrested on 29-8-81 and interrogated
by the police. Pursuant to his statements and being led by him,
the police recovered some stolen articles namely, a ladies wrist
watch, one gold plated iron bangle, one gold bauti and one piece
of a torn gold neck chain studded with red stones from different
places. All these articles belonged to the deceased and were either
sold or pawned by the appellant shortly after her murder.
9. On 22-9-81 the appellant was placed in a test identification
parade where he was identified by Sunita and Ranjit as the husband
of their ex-maid servant Kalpana and by Gopal and his friend Swapan
as the person who, along with two others, went to the deceased's
flat on 19-7-79 at or about 2 p.m.
10. On completion of the investigation the police submitted charge-sheet
against the appellant and one Ganesh Ghosh showing him as absconding
and, in usual course the case was committed to the Court of Session.
11. The appellant pleaded innocence and took up the defence that
he had been falsely implicated.
12. The prosecution examined 52 witnesses to prove its case, while
the defence examined none.
13. The robbery in the deceased's flat and her murder in course
of the same transaction are not challenged by the defence and
have been proved by overwhelming evidence. Sunita (P.W. 39) is
the daughter of the deceased. Her evidence goes to show that on
19-9-79 after returning from school at or about 4 p.m. she found
the door of their flat closed with the latch fixed to its outer
side. Opening the door, she went inside the flat and found her
mother lying in a pool of blood in the dining room near the refrigerator.
She called her several times but got no response. She then rushed
to Flat No. 2 situated in front of their flat and reported the
incident to Sarala Debi (P.W. 24), wife of Bhagawanti Prosad,
the tenant of the said flat. Sarala Debi and her cook Basanti
(30) a once came to the deceased's flat with her and found the
deceased lying in a pool of blood in the dining room. The deceased's
son Ranjit (P.W. 39) was informed over phone and coming to their
flat he too, found the deceased lying in the dining room in a
pool of blood. The same evidence has been given by the landlord
Anil Kumar Chanda (P.W. 3) and the Investigating Officer (P.W.
40) who visited the flat sometime between 4.30 and 5 p.m.
14. The post-mortem examination was held by Dr. D. K. Debnath
(P.W. 9) who noticed one gaping wound on the throat, one incised
punctured wound on the left side of the front of neck, one incised
penetrating wound more or less horizontally across the mid-line
of the under-surface of the mouth adjoining the upper-most part
of the front of neck, besides quite a number of incised wounds
and ecchymosis on various parts of the body, fully detailed in
his evidence. The injuries on the palm, according to the autopsy
surgeon, were injuries of defence sustained by the deceased while
trying to ward off the attacks. He expressed the opinion that
death of the deceased was due to shock and haemorrhage as a result
of the throat injury and other associated injuries, which were
ante-mortem and homicidal in nature.
15. The number and the nature of the injuries, the parts of the
body where the injuries were inflicted and the nature of weapons
used in inflicting the injuries can leave no room for doubt that
the injuries were inflicted with the intention of causing death.
16. Sunita (P.W. 38), Ranjit (P.W. 39), Basanti (P.W. 30), Sarala
Debi (P.W. 24), Anil Kumar Chanda (P.W. 3) and the Investigating
Officer (P.W. 40) who went to the deceased's flat shortly after
the occurrence found the almirah open and ransacked. They also
found an empty vanity bag, an empty plastic wrist watch case and
an empty ornament case strewn inside the bed room. Cash, ornaments
and other valuables were also found missing from the flat. In
short, signs of robbery and violence were writ large in the flat.
The evidence discussed above was not even challenged in cross-examination
and there is hardly any reason to disbelieve the statements of
the witnesses as to what they saw after entering the flat. Therefore,
the robbery and the murder stand abundantly established.
17. The robbery and the murder having been proved beyond any reasonable
doubt, the point that now remains for our consideration is whether
the appellant participated in the above crimes.
18. In the absence of any direct evidence of the robbery and the
murder the prosecution rested its case solely on circumstantial
evidence which, for convenience of discussion, are detailed below
:-
1) the appellant Himangshu happens to be the husband of Kalpana
who used to work as a maid servant in the flat of Kapildeo (P.W.
4) and left the job a few months before the murder of Khusirani,
wife of Kapildeo;
2) during the tenure of Kalpana's service the appellant visited
the flat of Kapildeo on several occasions and during each visit,
he used to talk with the deceased;
3) On 19-9-79 at or about 2 p.m. the appellant, along with two
others, came to the deceased's flat and started talking with her
over the repair of her refrigerator which went out of order;
4) at that time appellant was wearing a printed shirt and carrying
a khaki bag in his hand;
5) the deceased's brother and his friend who paid a visit to her
flat on that day saw the appellant and his two companions entering
the flat and the appellant talking with the deceased over the
repair of her refrigerator;
6) the deceased's brother and his friend left the flat after a
short while;
7) at the time when they left the flat there was none else in
the flat besides the deceased, the appellant and his two companions;
8) on the same day, at or about 4 p.m. the door of the flat was
found closed from outside with the latch fixed to the door and
the deceased was found lying murdered in her dining room with
multiple injuries on her person - some gaping, some penetrating
and some incised, besides ecchymosis on different parts of the
body;
9) the almirah was found open and ransacked and the wrist watch
and some ornaments of the deceased were found missing. A portion
of the deceased's neck chain which was found torn was located
inside the flat, while the remaining portion remained untraced;
10) one printed terry-cotton shirt and a khaki cloth bag containing
stains of blood were found inside the flat;
11) In a test identification parade the deceased's brother and
his friend identified the appellant as the person who on 19-9-79
at or about 2 p.m. went to the deceased's flat with two others
and started talking with her about the repair of her refrigerator;
12) the deceased's brother and his friend also identified the
printed terry-cotton shirt as the shirt which the appellant was
wearing at that time and the khaki bag as the bag which he was
carrying in his hand;
13) in the above test identification parade the appellant was
identified by the deceased's son and daughter as the husband of
their ex-maid servant Kalpana who visited their flat several times
before the occurrence and had talks with their mother;
14) some hairs seized from inside the flat were, on chemical examination
found morphologically to be similar to the scalp hairs of the
appellant which were taken as sample by the Investigating Officer;
15) in pursuance of statements made by the appellant and being
led by him the police recovered a ladies wrist watch, one gold
plated iron bangle, one gold bauti and one piece of a torn gold
neck chain studded with red stones from different places within
and outside Calcutta;
16) all the above articles belonged to the deceased and were found
missing from her flat after the crimes were detected;
17) the wrist watch was sold by the appellant to the owner of
a cloth shop, while the ornaments were pawned by him on the next
day that is on 20-9-79 to two different persons - one of Calcutta
and the other of Tamluk in the district of Midnapore.
19. The nature and standard of proof required to establish a case
depending wholly upon circumstantial evidence have been clearly
laid down by the Supreme Court in Earabhadrappa v. State of Karnataka,
reported in AIR 1983 SC 446 : (1983 Cri LJ 846). Below is extracted
the relevant portion of the judgment :
"In a case in which the evidence is purely of a circumstantial
nature, the facts and circumstances from which the conclusion
of guilt of the accused is to be drawn must not only be fully
established beyond reasonable doubt and the facts and circumstances
should not only be consistent with the guilt of the accused but
they must be in their effect entirely incompatible with the innocence
of the accused and must exclude every reasonable hypothesis consistent
with his innocence."
20. We now propose to examine the evidence presented during the
trial to see whether all or any of the circumstances relied upon
by the prosecution have been proved beyond reasonable doubt and,
if so, whether the circumstances proved entirely incompatible
with the innocence of the appellant and exclude every reasonable
hypothesis other than his guilt.
21. The first two circumstances have been well proved by Ranjit
(P.W. 39) and Sunita (P.W. 38), the son and daughter respectively
of the deceased. Their evidence is that before Lila alia Burima
was engaged by them, one Kalpana used to work as their maid servant.
It is their further evidence that the appellant is the husband
of Kalpana and he came to their flat several times during Kalpana's
tenure of service. According to them, whenever he visited their
flat he used to talk with the deceased. The above evidence has
not been shaken by effective cross-examination and we do not see
why these two young boy and girl having no animus against the
appellant would depose falsely against him. It should be mentioned
that both in the test identification parade as well as during
trial they correctly identified the appellant as the husband of
their ex-maid servant Kalpana. Though their father Kapildeo (P.W.
4) failed to identify the appellant in the test identification
parade he has nevertheless corroborated them by deposing that
on one occasion he saw Kalpana's husband talking with the deceased
in his flat. This clearly goes to show that before the incident
the appellant visited the deceased's flat on several occasions.
22. The deceased's brother Gopal (P.W. 10) and his friend Swapan
(P.W. 13) have been examined by the prosecution to prove circumstances
Nos. 3 to 7. Gopal (P.W. 10) states that on 19-9-79 at or about
2 p.m. he and his friend Swapan (P.W. 13) went to the deceased's
flat. The deceased was alone in her flat during their talks with
her they came to know that her refrigerator was out of order.
While they were talking with the deceased the door was tapped
and the deceased, after looking through the eye-hole opened the
door when three men entered the flat. One of them wearing a printed
shirt and carrying a khaki bag started talking with her about
the repair of her refrigerator and after sometime he and his friend
left the flat with those three men still inside.
23. Swapan's evidence is more or less identical and need not be
stated except that they came to know that the deceased's refrigerator
was out of order when Gopal wanted a glass of cold water from
her. Both Gopal and Swapan identified the appellant in the test
identification parade as well as during trial as the person who,
along with two others, went to the deceased's flat on 19-9-79
at or about 2 p.m. wearing a printed shirt and carrying a khaki
bag.
24. That Gopal and his friend actually paid a visit to the deceased's
flat on that day at or about 2 p.m. has been amply supported by
Bhagawati Prosad (P.W. 7), the tenant of Flat No. 2, opposite
to Flat No. 3 of the deceased. Bhagawati Prosad is the owner of
a factory at Belur. His evidence indicates that he leaves for
his factory in the morning and returned back between 8 and 9 p.m.
but sometime he comes to his flat at noon for lunch. His evidence
further indicates that on 19-9-79 while he was entering Premises
No. P-294 C.I.T. Road through the main gate for lunch in his flat
he found Gopal, whom he knew from before, coming out of the house
with another man and on being asked, Gopal told him that he came
to see his sister. Gopal too, has stated about his meeting with
Bhagawati Prosad while going out of the house and has been corroborated
by his friend Swapan (P.W. 13) who deposes that while going out
of the house they met one non-Bengali gentleman at the gate with
whom Gopal talked for about a minute or so. Later on, he heard
from Gopal that the gentleman was the tenant of the flat opposite
to his sister's flat. Also, the evidence of Sarala Debi (P.W.
24) to some extent corroborates their evidence in that according
to her, on 19-9-79 her husband Bhagawati Prosad came home shortly
after 2 p.m. for lunch. All the above witnesses have been cross-examined
by the defence but nothing tangible has been elicited from them
to even remotely suggest that they are not witnesses of truth.
25. Mr. Jaiswal, the learned Advocate for the appellant, strongly
assails the identification of the appellant in the test identification
parade by Gopal and Swapan on the ground that the test identification
parade having been held long after the incident, it could never
be possible for them to remember the features of the appellant.
It is true that the test identification parade was held on 22-9-81
that is two years after the incident but since the appellant was
absconding, the blame for the delayed test identification parade
cannot lie upon the prosecution. The appellant was arrested on
28-8-81 and, on the prayer of the Investigating Officer, he was
remanded to police custody till 10-9-81. He was again produced
before the Magistrate on 11-9-81 with a prayer for placing him
in a test identification parade and the parade was held on 22-9-81.
Therefore, the delay in holding the test identification parade
was not due to any latches or design on the part of the investigating
agency.
26. The contention of Mr. Jaiswal that it could not be possible
for Gopal and Swapan to remember the features of the appellant
after such a long time does not impress us at all. The evidence
goes to show that both of them saw the appellant in broad day
light at close quarters and for quite sometime. On the same night
they heard about the murder of the deceased. Naturally, therefore,
they would try to retain in their minds the impression of the
persons whom they saw in the deceased's flat on that day. In the
above circumstances, we are unable to agree with Mr. Jaiswal that
it was not possible for Gopal and Swapan to identify the appellant
after the lapse of two years.
27. The test identification parade, as we find from the evidence
of the learned Magistrate (P.W. 12), was held in circumstances
precluding all chances of collusion between the investigating
agency and the identifying witnesses. The appellant too, did not
complain to the Magistrate about any such collusion and the fact
that he was correctly identified by Gopal and Swapan from amongst
ten others all of similar features and dress and that the deceased's
husband failed to identify him, lend assurance to the fairness
of the test identification parade.
28. From the evidence discussed above, it would appear that the
appellant was not a stranger to the deceased's family. He came
to her flat several times before the incident and each time he
came he had talks with the deceased. Therefore, there was nothing
unusual in the conduct of the deceased to allow him and his associates
to remain in the flat after her brother and his friend had departed.
She must have genuinely believed that the appellant who is the
husband of her ex-maid servant had come with his companions to
repair her refrigerator which had gone out of order. In our opinion,
therefore, circumstances Nos. 3 to 7 have fully established.
29. Circumstance No. 8 has been amply proved by Sunita (P.W. 38),
Sarala Debi (P.W. 24), Basanti (P.W. 30), Ranjit (P.W. 39) and
the autopsy surgeon (P.W. 9). Their evidence has been discussed
already and needs no further repetition.
30. The first Investigating Officer (P.W. 40) arrived at the deceased's
flat round about 5 p.m. that is, shortly after the murder was
detected. It is seen from his evidence that when he arrived there
he found the entire flat ransacked. The almirah was found open
and various articles were lying scattered inside the flat as would
appear from the seizure lists (exhibits 4/4 and 7/4). The deceased's
husband (P.W. 4) has deposed that after returning to Calcutta
from Mirzapore on 21-9-79 he found the flat ransacked and the
valuables missing. According to him, he presented a "Smitha"
HMT wrist watch to his wife. Though the plastic watch case and
the guarantee card were found in the flat, the watch could not
be traced. According to him, his wife used to wear a gold neck
chain studded with red stones, two gold rings, one gold bangle,
one gold plated iron bangle and one pala as ornaments but those
were found missing from her person after the murder. The rest
of the ornaments which were kept in the locker of the almirah
and one favre-leuba wrist watch were also found missing. A portion
of the gold neck chain of the deceased which was found torn was
located inside the flat and was seized under the seizure list
(Ext. 7/4), while the remaining portion could no be traced. The
Investigating Officer also seized one printed terry-cotton full
sleeve shirt and one khaki cloth bag under the seizure lists (Exts.
6/2 and 7/4) respectively. Circumstances Nos. 9 and 10 have, therefore,
been proved beyond the slightest shadow of doubt.
31. With regard to circumstances Nos. 11 to 13, we have already
discussed the evidence of Sunita (P.W. 38), Ranjit (P.W. 39),
Gopal (P.W. 10) and Swapan (P.W. 13) all of whom identified the
appellant not only during the trial but also in the test identification
parade. The printed terry-cotton full sleeve shirt and the khaki
bag seized from the deceased's flat were identified during trial
by both Gopal and Swapan. While identifying the above articles
they stated that the appellant was wearing the said shirt and
carrying khaki cloth bag when he visited the deceased's flat on
19-9-79 at our about 2 p.m. We have carefully scrutinised their
evidence and we see no reason to discard it as untrue or unworthy
or credit. Circumstances Nos. 11 to 13 are, therefore, fully established.
32. After the appellant was taken into police custody the Investigating
Officer took samples of his scalp hairs by combing and sent the
hairs to the Forensic Science Laboratory for comparison with the
hairs found in the deceased's palm and at other places inside
the flat. On examination and comparison by the Senior Scientific
Officer (P.W. 18) the hairs found adhering to the blade of the
Rampuria knife seized from the deceased's flat were found morphologically
to be similar to the sample hairs of the appellant (report - Ext.
15). Through the learned trial Judge accepted the report of the
Senior Scientific Officer, on scrutiny of his evidence, we consider
it unsafe to act upon the report. It has been elicited in his
cross examination that he did not measure the diameters of the
shafts of the hairs or their length, did not take impression of
the cuticles of the hairs, did not note the shapes, appearance
and the colours of the hairs or the directions of the pointing
out of the hairs. The science of comparison of hairs has not yet
reached perfection like the science of comparison of finger prints.
Where, therefore, all the tests were not meticulously carried
out, it would be unsafe to rely upon the report. We, therefore,
leave out of our consideration the report of the Senior Scientific
Officer (Ext. 15). In our opinion, circumstance No. 14 has not
been proved beyond reasonable doubt.
33. It has been pointed out above that the appellant absconded
after the occurrence and was arrested on 28-8-81 from a house
in village Gorokpur in the district of Mindnapore. After his remand
to police custody, he made a statement on 30-8-81 and pursuant
to his statement and being led by him, the police recovered some
of the stolen articles from different places. We propose to deal
exhaustively with this aspect of the case as it assumes great
importance in determining the charges against the appellant.
34. The statement leading to the discovery of the ladies wrist
watch is as follows :-
"I sold the ladies wrist watch in a cloth shop at Kadapara.
I can shown the cloth shop and the person to whom I sold the ladies
wrist watch." (Ext. 28).
The evidence indicates that after making the statement the appellant
led the Investigating Officer (P.W. 52) to cloth shop named "Janata
Stores" at 95, Narkeldanga Main Road and pointed out Biswanath
Jadab (P.W. 15), the owner of the shop, as the person to whom
the watch was sold by him. On being asked by the police, Biswanath
produced the wrist watch which was seized under the seizure list
exhibit 12/3 dated 31-8-81 in presence of P.Ws. 16 and 17. Biswanath
deposed that about 2/3 years back the appellant, who visited his
shop on some earlier occasions for purchasing clothes went to
the shop with the wrist watch and sold it to him for Rs. 150/-
disclosing that his wife was ailing. The production of the wrist
watch by Biswanath on being pointed out by the appellant has been
deposed to by Khusilal (P.W. 16), one of the seizure list witnesses
who, along with others, assembled in front of the cloth shop when
the police went there. The other seizure list witness Khajanchi
(P.W. 17) was simply tendered by the prosecution and cross-examined
by the defence. Though the seizure list witnesses were cross-examined
by the defence, nothing could be elicited from them to suggest
that they are suborned witnesses not worthy of credit. In fact,
the seizure list witnesses were not even known to the appellant
and there could therefore hardly be any reason for them to falsely
implicate the appellant at the behest of the police.
35. Mr. Jaiswal argues that in the absence of any document to
show that the appellant sold the wrist watch to Biswanath (P.W.
15), his evidence should be discarded outright as undependable.
We are unable to accept the above argument. The evidence of the
Investigating Officer clearly indicated that the appellant not
only made the above statement but also led him to the cloth stores
and pointed out Biswanath as the person to whom the watch had
been sold by him. The production of the watch by Biswanath on
being asked by the police lends full assurance to his evidence
that the appellant sold the watch to him. Biswanath, as appears
from his cross-examination has no money lending business or business
of purchase of old article. Consequently, no document can be expected
in respect of the sale of the watch. Biswanath has no animus against
the appellant and we fail to comprehend why he would claim that
the watch was sold to him by the appellant if, in fact, it has
been sold to him by some one else.
36. The appellant made another statement on 30-8-1981 as under
:-
"I can show the jewellery shop at Mechhuabazar, Calcutta
as also the person where I had pawned one iron bangle covered
with gold and one gold bauti with red stones." (Ext. 28/1).
After having made the above statement he led the police to the
jewellery shop named "Krishna Kishore Dutta and Amarendra
Nath Dutta" at 207A, Rabindra Sarani, Calcutta. On being
asked by the police Amarendra (P.W. 32), one of the joint owners
of the shop, produced one gold plated iron bangle and one gold
bauti set one piece of red stone which were seized under the seizure
list exhibit 23/3 in presence of witnesses. Along with the above
ornaments the police also seized the account book of the shop
showing that the ornaments were pledged by the appellant.
37. Amarendra (P.W. 32) who is also a licensed money lender deposes
that on 2-9-81 between 7.30 and 7.45 p.m. the police went with
the appellant to his shop when the appellant told him that about
two years back he had pledged one gold plated iron bangle and
one gold bauti with him but he could not recollect the transaction.
When, however, the appellant disclosed that he signed certain
papers while pledging the ornaments, he examined the account books
of his money lending business and found out that on 20-9-79 the
appellant had pledged one gold bauti, one red lac bangle and one
gold plated iron bangle for Rs. 800/-. The seizure of the ornaments
and the account book has been corroborated by the seizure list
witnesses Ramsebak (P.W. 43) and Ajit (P.W. 44).
38. Exhibit 24 is the true copy of the relevant entry in the account
book. It clearly points out that on 20-9-79, the appellant himself
went to the said jewellery shop and pledged one gold bauti, one
red lack bangle and one gold plated iron bangle weighing two bharies
and five tolas in all for a sum of Rs. 800/-. Amarendra (P.W.
32) states in his evidence that at the time of pledging the ornaments
the appellant put his signature on the reverse side of the page
containing the entry and this was not challenged in cross-examination.
39. Pursuant to the statement made by the appellant and being
led by him, the police also recovered one piece of a torn neck
chain studded with red stones from a jewellery shop at Tamluk
in the district of Midnapore. The statement (Ext. 28/2) is extracted
below :-
"I can show the jewellery shop and the persons at Tamluk
whom I had pawned the torn gold neck chain with red stones."
The evidence of Sub-Inspector Bhattacharjee (P.W. 51) is that
on 10-9-81 he went with the appellant to Tamluk. Being led by
the appellant, he and the local police then went to the Sati Jewellery
shop at Parbatipur. There the appellant pointed out a man with
whom he had pledged one piece of the torn gold neck chain. The
man disclosed his name as Ganesh Das and produced one piece of
torn gold neck chain which had been pledged to him by the appellant.
40. Ganesh Das (P.W. 20) is one of the partners of Sati Jewellery
shop. It is seen from his evidence that after going to his shop
the appellant pointed him out to the police as the person with
whom he had pledged one piece of torn gold neck chain and after
examining his account books he brought out the article which,
along with the account book, were seized by the police in presence
of witnesses. He, further states that while pledging the ornaments
the appellant signed the account book as well as the receipt.
Exhibit 18/3 is the seizure list in question and exhibit 17 is
the extract of the relevant entry in the account book. From exhibit
17 it is manifestly clear that on 20-9-79 the appellant pledged
one piece of torn gold neck chain set with red stones with Ganesh
Das for Rs. 600/- after putting his signature in the account book
of the shop.
41. Rabindra Nath Seal (P.W. 23) and Harisadhan Singh (P.W. 27)
are the seizure list witnesses of whom, the latter is an employee
of Sati Jewellery for the last 11/12 years. He is also the writer
to Exhibit 17. To the seizure list witnesses it was suggested
by the defence that the appellant did not go to Sati Jewellery
with the police and did not make any statement about the pledging
of ornaments but the suggestion was stoutly denied. The suggestion
given to Ganesh Das (P.W. 20) is that the appellant did not pledge
the above ornaments with him but he too, emphatically refuted
the suggestion. The account books of both the jewellery shops
at Calcutta and Tamluk having been kept in regular course of business
and signed by the appellant himself are above suspicion and must
be regarded as authentic documents showing that the ornaments
were pledged by the appellant on the very next day or the murder
of the deceased.
42. The ladies wrist watch recovered by the police pursuant to
the statement of the appellant has been identified by the husband
of the deceased (P.W. 4) as the very watch presented by him to
the deceased. After returning from Mirzapur, he handed over the
guarantee card of the watch to the police which was seized under
a seizure list (Ext. 8/2) in presence of Nazib Akhtar Khan (P.W.
33). Prabhas Mitra (P.W. 42) an employee of "Samabayika",
a co-operative store, has deposed that the guarantee card (Ext.
XVIII) was issued by them after the sale of the watch. It is also
in evidence of the deceased's husband that the first letters of
his wife's name and surname that is, 'K.S.' were engraved on the
back of the watch and these letters were found on the back of
the ladies wrist watch recovered by the police from Biswanath
(P.W. 16) of "Janata Stores" (vide seizure list - Ext.
12/3). It is, therefore, conclusively proved that the watch recovered
by the police pursuant to the statement of the appellant belonged
to the deceased.
43. The gold bauti, the gold plated iron bangle and one piece
of the torn gold neck chain studded with red stones recovered
by the police pursuant to the statements made by the appellant
have also been identified by the deceased's husband as his wife's
ornaments and this part of his evidence has not even been challenged
by the defence. The torn piece was sent to the Forensic Science
Laboratory for examination and the report (Ext. 16) of the Senior
Scientific Officer (P.W. 19) is that the article sent to him is
a torn portion of a necklace like ornament. The evidence of the
deceased's husband, read with the opinion of the Senior Scientific
Officer, therefore, leave no room for doubt that the portion of
the neck-chain seized by the police from Sati Jewellery forms
part of the deceased's gold neck chain another portion of which
was found lying near her dead body. We are, therefore, fully satisfied
that circumstances Nos. 15 to 17 have been proved beyond any reasonable
doubt.
44. The evidence leaves no room for doubt that both the robbery
and the murder were committed in course of the same transaction.
From the fact that the stolen articles were recovered by the police
pursuant to the statements made by the appellant and being led
by him and the further fact that the stolen ornaments were pledged
by the appellant on the very next day of the murder in two jewellery
shops - one in Calcutta and the other at Tamluk; the learned trial
Judge drew the inference under S. 114(a), Evidence Act that the
appellant not only took part in the robbery but also in the murder
of the deceased. In our considered opinion, the inference drawn
by the learned trial Judge is the only legitimate inference that
could be drawn in the circumstances of the case and we fully agree
with the inference so drawn.
45. In the case of Earabhadrappa v. State of Karnataka, reported
in AIR 1983 SC 446; (1983 Cri LJ 846) the accused was charged
for murder and robbery. He could be arrested after the lapse of
a period of one year and some stolen articles were recovered pursuant
to his statement under S. 27, Evidence Act. Before the Supreme
Court the argument was advanced that since a period of one year
elapsed between the murder and the discovery of the stolen articles
the only reasonable inference that could be drawn under S. 114(a),
Evidence Act was that the accused was merely the receiver of stolen
property and had not committed the murder. Overruling the argument
their Lordships held that since the accused was absconding, the
presumption of both murder and robbery could legitimately be drawn
against him even though the stolen properties were recovered after
the lapse of one year.
46. Though the precise date of the sale of the deceased's wrist
watch by the appellant does not transpire from the evidence, it
has been conclusively proved that the deceased's ornaments were
pledged by the appellant on 20-9-81 that is, on the day next following
the date of her murder. In such a situation, apart from the other
circumstances proved against the appellant and fully discussed
above, the only legitimate inference to be drawn against the appellant
under S. 114(a), Evidence Act is that he not only took part in
the robbery but also in the murder of the deceased. The other
tell-tale circumstances proved against him also unerringly point
to his guilt and fortify the inference that he took part in both
the crimes that is, robbery and murder. In our opinion, therefore,
the appellant has been rightly convicted under S. 392 and 302/34,
I.P.C. and we see absolutely no reason to interfere with the order
of conviction passed against the appellant by the learned trial
Judge.
47. That now takes us to the question of sentence. Mr. Jaiswal
vehemently contends that since the death sentence has been hanging
over the appellant's head for a period of about three years the
sentence should at least, on humanitarian grounds, be commuted
to one of imprisonment for life. Mr. Mukherjee, the learned Public
Prosecutor appearing for the State, on the other hand contends
that in view of the enormity and depravity of the crime the death
sentence should be confirmed.
48. The question when the extreme penalty of death should be awarded
is no longer res integra and has been set at rest by the Supreme
Court in the case of Bachan Singh v. State of Punjab, reported
in AIR 1980 SC 898 : (1980 Cri LJ 636) where their Lordships observed
that death sentence should be awarded only in the 'rarest of rare'
cases when the alternative option is unquestionably foreclosed.
49. The above decision was followed by the Supreme Court in the
case of Earabhadrappa v. State of Karnataka, already cited above,
AIR 1983 SC 446 : (1983 Cri LJ 846) where the accused committed
murder of his master's wife in order to commit robbery of the
gold ornaments on her person and other valuables of the house.
He was found guilty of both the offence of robbery and murder
but the death sentence awarded to him by the trial Court and confirmed
by the High Court was reduced to one of imprisonment for life
with the following observations :-
"Finally there remains the question of sentence. It was cruel
hand of destiny that the deceased Smt. Bachamma met a violent
end by being strangulated to death by the appellant who betrayed
the trust of his master (P.W. 3) and committed her pre-planned
cold blooded murder for greed in achieving his object of committing
robbery of the gold ornaments on her person and in ransacking
the iron safe and the almirah kept in her bed room on the fateful
night. The appellant was guilty of a heinous crime and deserves
the extreme penalty. But we are bound by the rule laid down in
Bachan Singh v. State of Punjab, AIR 1980 SC 898 : (1980 Cri LJ
636) where the Court moved by compassionate sentiments of human
feelings has ruled that sentence of death should not be passed
except in the 'rarest of rare' cases. The result now is that capital
punishment is seldom employed even though it may be a crime against
the society and the brutality of the crime shocks the judicial
conscience."
50. In view of the above two decisions of the Supreme Court we
are unable to hold that this is one of the 'rarest of rare' cases
where the alternative option of awarding life imprisonment is
unquestionably foreclosed. That apart, we cannot also lose sight
of the fact that the death sentence has been hanging over the
appellant's head for almost three years, subjecting him to unbearable
mental agony and pain. We, therefore, feel that the sentence of
death, in the circumstances of this case, should be commuted to
one of imprisonment for life.
51. In the result, while maintaining the conviction of the appellant
under Ss. 392 and 302/34, I.P.C. and also the sentence for the
offence under S. 392, I.P.C. We commute the sentence of death
for the offence under S. 302/34, I.P.C. to one of imprisonment
for life. Subject to the above, the appeal is dismissed. The death
reference is rejected.
MONOJ KUMAR MUKHERJEE, J. :- I agree.
Order accordingly.
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