Calcutta High Court Commutes Death Sentence To Life | Rapist-Killer Of Minor Maid To Serve 20 Years Without Remission | Court Finds Cold-Blooded Murder But Age And Reform Considered
Sanchayita Lahkar
The High Court of Calcutta Division Bench of Justice Debangsu Basak and Justice Md. Shabbar Rashidi commuted the death sentence of a convict to life imprisonment, directing that such imprisonment shall mean incarceration without remission for a period of twenty years from the date of his arrest. The court upheld the conviction of the appellant under Sections 376(2)(i)(k), 302, and 201 of the Indian Penal Code, 1860, and Section 6 of the Protection of Children from Sexual Offences Act, 2012. While affirming the conviction based on a complete chain of circumstantial evidence, the Bench evaluated the sentencing on parameters of aggravating and mitigating circumstances and concluded that the death penalty should not be imposed, considering the convict's age and absence of criminal antecedents.
The matter involved a death reference and an appeal arising out of the impugned judgment of conviction dated November 15, 2018, and sentence dated November 16, 2018, passed in Sessions Trial No. 3(12) of 2016, arising out of Sessions Case No. 67(11) of 2016. The trial court had convicted the appellant under Sections 376(2)(i)(k)/302/201 IPC and Section 6 of the POCSO Act and sentenced him to death.
The prosecution case was initiated on August 8, 2016, when the de facto complainant, the victim's uncle, filed a written complaint with Haldia Police Station alleging that the victim, a minor girl working as a maid servant at the house of the appellant, was found dead and burnt in the bathroom of the appellant's house. He received a telephonic call from the appellant informing him that the victim was seriously ill. Upon reaching the location with his sister, they found the deceased with her body completely charred. The complaint included a suspicion that the victim was raped and then set on fire by the appellant.
An FIR was registered under Sections 376(2)(i)(k)/302 IPC and Section 6 of the POCSO Act. During investigation, police conducted inquest, post-mortem, and collected evidence from the scene. Charges were framed on December 22, 2016. The appellant pleaded not guilty and faced trial.
The prosecution examined 15 witnesses. The de facto complainant (PW 1) deposed that the victim worked for over two and a half years in the appellant's house. On August 8, 2016, he received a phone call from the appellant. Upon arrival, he found the victim dead in the bathroom. He stated that the appellant committed rape and then set her on fire. He testified to the salary arrangement and past ill-treatment of the victim.
PW 2, the victim's mother, supported the salary arrangement and stated the victim occasionally reported ill-treatment. On the day of the incident, she and PW 1 went to the appellant's house and found the victim's dead body. She also suspected rape and murder.
PW 3, the victim's aunt, corroborated that she was informed of the rape and murder by PW 1 and identified the seized articles. PW 4, a police constable, testified about transporting the dead body and seizure of victim’s clothing. PW 5, a neighbour, stated he saw the appellant calling his relatives (PW 6 and PW 9) from a different door, around 1:30 PM on August 8, 2016.
PW 6, nephew of the appellant, stated that the appellant informed them that the maid was not opening the door. They broke open the main door and found the bathroom slightly open with smoke emanating. The victim was found dead. He also stated he saw the appellant closing one of the room doors. PW 9, wife of PW 6, supported this version and identified the appellant. Both PW 6 and PW 9 recorded statements under Section 164 CrPC.
PW 7, a medical officer, examined the appellant on September 21, 2016, and proved his fitness for intercourse. PW 10, the autopsy surgeon, stated that the death was caused by throttling and burn injuries were post-mortem. He found fractures in the hyoid bone, signs of repeated sexual assault, and a faint smell of kerosene. PW 11, the scribe, confirmed he drafted the written complaint on dictation from PW 1.
PW 12, a witness to the seizure, confirmed that police seized pillow, lungi, mat and bedcover on August 14, 2016 as shown by the appellant. PW 13 and PW 15 were police officers. PW 13 proved the FIR and endorsement, while PW 15 described the investigation, inquest, seizure of evidence, and submission of charge sheet. PW 14, the Judicial Magistrate, proved the Section 164 CrPC statements.
The Division Bench acknowledged that the case rested on circumstantial evidence and stated in "none of the witnesses examined on behalf of the prosecution has claimed having seen the convict committing murder of the victim. The case is entirely based upon circumstantial evidence."
The court found the prosecution’s chain of evidence to be complete and observed that "the chain of circumstances, are complete and neatly woven to exclude the intervention of anybody other than the appellant, in the commission of the offence."
On the presence of the convict at the crime scene, the court noted, "Two neighbours, who also happened to be the relatives of the convict and resided in the adjoining house, have placed the convict at the place of occurrence at the relevant point of time."
Regarding the medical evidence, the court recorded, "PW 10 coupled with that of Exhibit 12, it is quite evident and can safely be inferred that the victim girl suffered an unnatural death." It also observed, "the victim was first killed by throttling and thereafter, there was an endeavor to annihilate the evidence of such crime by setting the dead body ablaze."
The Bench invoked Section 106 of the Evidence Act, stating that since the convict lived alone with the victim, he was obligated to explain her death. The court remarked, "in terms of Section 106 of the Indian Evidence Act, the appellant was under obligation to explain the circumstances under which the victim died. There was no attempt on the part of the appellant to discharge such obligation."
On sentencing, the court quoted settled law: "death penalty should be resorted to in exceptional circumstances where the court awarding the sentence is able to return a finding that the case fell within the category of 'rarest of rare cases'."
The court considered psychological and socio-economic reports. "Such report indicates that the convict is 58 years of age... No criminal antecedent, however, could be found as against the convict." It further observed, "the convict is not reported with any criminal antecedent or unstable social behavior in the past. Moreover, he is of an advanced age of 58 years."
The court affirmed the conviction under Sections 376(2)(i)(k)/302/201 IPC and Section 6 of the POCSO Act. However, "we are minded to commute the death sentence awarded to the appellant into one of life imprisonment."
It was clarified, "the imprisonment of life, so awarded to the appellant, shall mean imprisonment for life without remission until 20 years from the date of his arrest."
The judgment concluded that "Death Reference No. 4 of 2018 along with the appeal being C.R.A. 684 of 2018, are disposed of accordingly."
Further, "In view of the commutation of the death penalty of Srimanta Tung, any warrant issued by the appropriate Court with regard thereto in respect of Srimanta Tung stands modified in terms of this judgment and order."
The Correctional Home was directed to "record the fact of commutation of death penalty to the sentence awarded by this judgment and order in respect of Srimanta Tung, in their records."
It was also directed that "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 Appellant: Mr. Kaushik Gupta, Learned Senior Advocate, Mr. Santanu Talukdar, Advocate
For the Respondent State: Mr. Debasish Roy, Learned Public Prosecutor, Mr. Rudradipta Nandy, Learned Additional Public Prosecutor, Mr. Suman De, Advocate
Case Title: State of West Bengal v. Srimanta Tung
Case Number: Death Reference No. 04 of 2018 with C.R.A. 684 of 2018
Bench: Justice Debangsu Basak, Justice Md. Shabbar Rashidi
