Safiya Malik

The High Court of Calcutta, Division Bench of Justice Debangsu Basak and Justice Md. Shabbar Rashidi upheld the conviction of the appellant for severe offences, including kidnapping, sexual assault, and murder, under the Indian Penal Code and the Protection of Children from Sexual Offences Act. However the Bench directed the commutation of the death sentence initially imposed for the murder charge. This pivotal decision resulted in the conversion of the capital punishment to life imprisonment, with the specific stipulation that this term would entail incarceration without remission for a period of 50 years from the date of arrest. This judgement effectively concluded the proceedings related to the death reference and the associated criminal appeal, modifying the original sentence while affirming the appellant's guilt on the foundational charges.

The High Court's review originated from an appeal against a judgment of conviction dated March 26, 2019, and a subsequent order of sentence dated March 28, 2019. These orders were issued by the learned Chief Judge, City Sessions Court, Calcutta, stemming from Sessions Trial No. 1 (4) of 2014, corresponding to Sessions Case No. 115 of 2013. The trial court had found the appellant guilty of offences punishable under Sections 364 (kidnapping or abducting in order to murder), 376A (intercourse by a man with his wife during separation or a woman during intercourse without her consent etc.), and 302 (murder) of the Indian Penal Code, 1860, as well as Section 6 of the Protection of Children from Sexual Offences Act, 2012. The original sentence included death for the murder charge, along with rigorous imprisonment for 8 years and a ₹5,000 fine for Section 364 IPC (with a 2-year default term), rigorous imprisonment for 20 years and a ₹50,000 fine for Section 376A IPC (with a 5-year default term), and rigorous imprisonment for 8 years and a ₹5,000 fine for Section 6 POCSO Act (with a 2-year default term). All sentences were to run concurrently.

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The appellant's counsel presented several arguments challenging the trial court's findings. It was contended that the prosecution's case relied entirely on circumstantial evidence, lacking any direct eyewitnesses, and that the chain of circumstances had not been proven to be complete enough to infer the appellant's sole involvement. Alleged material contradictions were stated in the testimonies of prosecution witnesses. Specifically, the reliability of PW6 and PW7 was questioned, with claims that their identification of the victim and appellant under insufficient light was unreliable. Their voluntary appearance before the police was characterized as unnatural, motivated, and tutored, suggesting an attempt to falsely implicate the appellant. It was asserted that a normal person could not retain such detailed accounts from a single sighting. The defence further argued that the recovery of the victim's wearing apparel at the appellant's direction was suspicious, citing no mention of missing garments in the First Information Report or PW3's testimony. PW8 and PW9 were labelled as "stock witnesses," undermining their credibility due to their frequent depositions for the police. Similarly, the employment claims of PW10 and PW11 at Royal Calcutta Turf Club were doubted due to the absence of supporting documentation, making their presence and testimony suspect. The defence also pointed out that PW14, the medical officer who first examined the victim, found no injury on the lower part of the body, and the Forensic Science Laboratory found no marks of violence or forcible intercourse on the victim's apparel, arguing that this eliminated a sexual offence. Finally, the alleged extra-judicial confession by the appellant was deemed inadmissible and unreliable, and the overall investigation was described as perfunctory with significant contradictions.

In response, the learned Public Prosecutor for the State maintained that the prosecution had successfully proven its case with "cogent and convincing evidence." The Public Prosecutor fully supported the impugned conviction and sentence, asserting that the trial court was justified in awarding the death sentence.

The factual background of the case commenced on July 21, 2013, when PW3, residing beneath a flyover in Khidderpore, reported her granddaughter missing. On July 20, 2013, after dinner, the family had slept around 10:00 p.m. at their usual spot. Around 2:00 a.m., PW3 awoke to feed her granddaughter, Victim, only to find the child missing. A frantic search involving family and other slum dwellers across the Khidderpore-Victoria area yielded no results. Subsequently, a local resident informed PW3 that he had observed the appellant peering into his room around 12:00-12:30 a.m. and had chased him away. A watchman at the Khidderpore gate of Race Course corroborated seeing the appellant near PW3's verandah late that night. Around 2:30 a.m., PW3 saw the appellant, wearing a check shirt and black pant with mud-stained legs, moving along the tram line from Fort William. Upon noticing a crowd, he attempted to flee but was apprehended by another slum dweller. The appellant stated he was returning to the stable after sleeping in the Ladies Golf Club fields, denying any knowledge of the missing child. He was then released.

PW3 later recollected an incident from the previous evening, July 21, 2013, around 5:00-6:00 p.m., where the appellant had played with the child and tried to take her for sweets, which PW3 had forbidden. The following morning, around 6:15 a.m., children from the slum, including discovered Victim's dead body in a drain near the Race Course wall while on their way to collect food. The body, dressed in a frock, showed bleeding from the nose, ears, and private organs, with injuries on the chin, head, and other parts. A veil was also found nearby. The body was brought back to PW3's residence, police were informed, and it was transported to P.G. Hospital, where the child was declared dead. PW3 expressed her belief that the appellant had abducted, sexually exploited, and killed her granddaughter.

Based on this information, Hastings Police Station Case No. 208 dated July 21, 2013, was registered against the appellant under Sections 363 (kidnapping), 364 (kidnapping or abducting in order to murder), 376 (rape), and 302 (murder) of the Indian Penal Code, and Section 4 of the Prevention of Children from Sexual Offences Act. Following investigation, a charge sheet was submitted, leading to charges being framed against the appellant on April 9, 2014, under Sections 364, 376A, and 302 of the Indian Penal Code, and Section 6 of the Prevention of Children from Sexual Offences Act, 2012. The appellant pleaded not guilty and chose to stand trial. The prosecution presented 32 witnesses, along with documentary and material evidence, to prove the charges. Key witnesses included PW1 (police constable photographing the scene), PW2 (Sub-inspector preparing sketch maps), PW3 (informant), PW4 (local resident who saw appellant peeping), PW5 (local resident who saw appellant roaming), PW6 and PW7 (businessmen who saw appellant with child), PW8 and PW9 (seizure list witnesses for victim's apparel), PW10 (gateman) and PW11 (security supervisor at Race Course stable), PW12 (racecourse employee providing attendance records), PW13 (appellant's employer), PW14 (medical officer for initial examination), PW17 (autopsy surgeon), PW23 and PW26 (police officers involved in arrest and recovery of railway ticket), PW27 (Judicial Magistrate for TIP), PW31 and PW32 (investigating officers). The appellant, in his statement under Section 313 CrPC, maintained his innocence and denied any connection to the incident, asserting false implication.

The Court observed that the victim, approximately 2.5 years old, vanished while sleeping with her grandmother, PW3. After a search, the body was found in a drain the next morning, July 21, 2013, by children. PW3 identified the body, which was then taken to SSKM Hospital and declared dead. The medical evidence, particularly from PW17, the autopsy surgeon, and his post-mortem report (Exhibit 15), detailed 17 injuries on the victim. PW17 specifically stated that injury No. 1 to 9, noted by him, were caused due to manual strangulation and were sufficient, in the ordinary course of nature, to cause death of a minor due to manual strangulation. Furthermore, PW17's evidence revealed that injury No. 10 was sufficient evidence to establish that the victim was subjected to sexual assault prior to her death.

The autopsy surgeon also opined that injuries 1 to 9 were caused by finger nails, and injuries 13, 14, 16, and 17 were sufficient to conclude that the victim died due to manual strangulation. PW17 categorically eliminated t the possibility of such injuries caused due to fall on rough surface. The Court stated that in view of the case of the prosecution coupled with the medical evidence adduced on behalf of the prosecution, it is quite evident that the victim girl died an unnatural death due to manual strangulation. The evidence so adduced also suggests the victim. being a child, was subjected to sexual assault before her death and in order to wipe out the evidence of crime, the victim girl was killed.

Regarding the appellant's culpability, the prosecution contended he kidnapped the child, sexually assaulted her, and murdered her to destroy evidence. The appellant, residing in a Kholi for horsemen, was seen by locals (PW4, PW5) peeping into residences and roaming late at night when the child went missing. He was apprehended by a crowd but released at the instance of the racecourse gateman who knew him. PW3 stated the appellant claimed he had fallen asleep at the Race Course and was returning to his residence. Crucially, PW6 and PW7 testified to seeing the appellant with the child in his lap near the Race Course flyover around 1:00-1:30 a.m. They identified the appellant, his attire, and the child from photographs. The investigating officer verified their presence at a restaurant that night. PW6 further identified the appellant in a Test Identification Parade. Reports from CESC, PWD (Electrical Division), and HRBC confirmed sufficient light in and around the Hastings flyover and Syed Baba Mazar area in the night of July 20, 2013/ July 21, 2013. There was no report of any technical snag or power cut on the date of incident. Therefore, such reports establish that there was sufficient light on the roads, flyover and surrounding areas of Hastings to enable the witnesses identify the appellant.

The victim's wearing apparel was recovered as per the leading statement of appellant. The relevant part of such statement was proved by the investigating officer. PW8 and PW9 testified such recovery in their presence and as shown by the appellant. They identified the recovered articles and their signatures on the seizure list. The witnesses firmly stated that recovery of a black polythene containing the wearing apparel from the garbage was made as pointed by the appellant. The Court thus concluded that on the basis of such evidence, there can be no doubt that the wearing apparel were recovered in terms of the provisions of Section 27 of the Indian Evidence Act, 1872.

Further evidence detailed the appellant's movements after the crime. PW10 testified that the appellant knocked on the stable gate at 2, Bakery Lane, at 2:30-2:45 a.m. on July 20, 2013, seeking entry, and was eventually allowed in by the supervisor (PW11). He was seen wearing a blue shirt and black trousers, later leaving in a RCTC khaki uniform with a black polythene bag around 3:00-3:30 a.m., possibly to dispose of the evidence of crime i.e. wearing apparel of the victim. The attendance register (proved by PW12) showed the appellant's unusual absence on July 21 and 26, 2013. Subsequently, the appellant, who had a consistent attendance record, fled to his native place in Vaishali, Bihar, where he was arrested. A railway ticket for July 21, 2013, from Sealdah to Hajipur, was recovered from his possession.

The Court stated that the circumstances, set forward by the prosecution, leave no space for any other hypothesis but of the guilt of the appellant alone. No circumstance, whatsoever, is forthcoming, on the basis of evidence on record to propose slightest of hypothecation pointing to involvement of any person other than the appellant, in the commission of the offences involved in this case. In that view of the facts we find no fault with finding of the learned trial court in so far as conviction of the appellant for the offences punishable under Sections 364/376A/302 of the Indian Penal Code, 1860 as well as Section 6 of Protection of Children from Sexual Offences Act, 2012 is concerned. We uphold such conviction.

In considering the sentence, the Court noted the appellant's age (45 years), his impoverished background, and the psychological evaluation report suggesting mild mental disability which could be attributed to his nil education. His life was described as reeling under poverty, and he resided alone after his wife left him. The circumstances of the case, the Court observed, do not suggest that the offence committed was preplanned or was an outcome of any rivalry or enmity with the family of the victim.

The Court recorded that every murder is gruesome but does not justify death penalty. Citing the Supreme Court's decision in Ramesh A Naika vs. Registrar General, High Court of Karnataka Etc. (2025 SCC OnLine SC 575), the Court recalled the principle that if the circumstantial evidence is of an unimpeachable character in establishing the guilt of the accused and leads to an exceptional case or the evidence sufficiently convinces the judicial mind that the option of a sentence lesser than death penalty is foreclosed, the death penalty can be imposed.

The Court also referred to Bachan Singh vs. State of Punjab (1980) 2 SCC 684, which outlined aggravating and mitigating circumstances, including the age of the accused and the probability of reform. Further reliance was placed on Machhi Singh vs. State of Punjab (1983) 3 SCC 470, which reinforced that the extreme penalty of death need not be inflicted except in gravest cases of extreme culpability. It was also noted that life imprisonment is the rule and death sentence is an exception. The Court concluded that in any case, we are not in a position to return a finding that the offence involved in the case at hand falls under the category of ‘rarest of rare cases’ to justify the punishment of death.

Therefore, taking into consideration the entire facts and circumstances of the case discussed hereinbefore and in consideration of the ratio laid down by the Hon’ble Supreme Court, the Court stated: we are minded to commute the death sentence awarded to the appellant for the offence punishable under Section 302 of the Indian Penal Code, 1860, into one of life imprisonment.

The Court added a specific condition, stating: However, considering the age of the appellant as well as other circumstances obtaining from the facts of the case, the imprisonment of life so awarded to the appellant shall mean imprisonment for life without remission until 50 years from the date of his arrest.

The other portions of the sentence imposed by the impugned judgment and order for the offences punishable under Section 376A/364 of the Indian Penal Code and Section 6 of the Protection of Children from Sexual Offences Act, 2012, were affirmed by the Court.

Accordingly, Death Reference 2 of 2019 along with the appeal being C.R.A. 384 of 2019 were disposed of.

In view of the commutation of the death penalty of the appellant, any warrant issued by the appropriate Court with regard thereto in respect of the appellant stands modified in terms of this judgment and order.

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The Department will inform the Correctional Home, where the appellant is lodged, as to this judgment and order.

The Correctional Home will record the fact of commutation of death penalty to the sentence awarded by this judgment and order in their records.

The period of detention already undergone by the appellant shall be set off against the substantive punishment in terms of the provisions contained in Section 428 of the Code of Criminal Procedure.

Advocates Representing the Parties:

For the Petitioners: Mr. Kallol Mondal, Senior Advocate; Mr. Krishan Ray, Advocate; Mr. Souvik Das, Advocate; Mr. Anamitra Banerjee, Advocate; Ms. Isita Kundu, Advocate; Mr. Akbar Laskar, Advocate

For the Respondents: Mr. Debasish Roy, Learned Public Prosecutor; Mrs. Trina Mitra, Advocate; Mr. Antarikha Basu, Advocate

Case Title: State of West Bengal vs. XXX

Case Number: Death Reference No. 02 of 2019 with C.R.A. 384 of 2019

Bench: Justice Debangsu Basak and Justice Md. Shabbar Rashidi

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