Safiya Malik

The High Court at Calcutta Division Bench of Justice Debangsu Basak and Justice Md. Shabbar Rashidi has commuted the death sentence imposed by the trial court to life imprisonment without the possibility of remission for a period of 60 years. The Bench held that while the crime demonstrated extreme depravity, the State failed to establish that the convicts were beyond reformation. The court concluded that the mitigating factors, including the socio-economic background and mental health condition of the convicts, necessitated a reassessment of the sentence.

The Court noted that although the offence involved the gang rape and murder of a five-year-old minor, "we are not in a position to arrive at a conclusive finding that, possibility of reformation of both the appellants stands foreclosed". In light of this, the High Court exercised its power to commute the capital punishment and directed that both appellants serve a non-remittable sentence of 60 years of life imprisonment from the date of the offence. The court also directed immediate communication of the judgment to the Correctional Home authorities and modification of any prior warrants issued in relation to the death penalty.

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The case arose from Sessions Trial No. 03(02) of 2022, initiated under POCSO Case No. 18/21, concerning the abduction, gang rape, aggravated penetrative sexual assault, and murder of a minor girl aged slightly over five years. The incident was reported to have taken place on November 7, 2021, when the victim went missing from her house in Jhargram.

The prosecution alleged that the two appellants had committed the crime in a premeditated and brutal manner, subsequently hiding the victim’s body in a paddy field. A written complaint was filed by the victim’s father at the local police station, alleging that one of the appellants had hidden the victim in a secret location. The police registered the FIR and, upon investigation, arrested the appellants. A charge sheet was filed against them, and the trial commenced with six charges framed on February 18, 2022.

During the trial, the prosecution examined 30 witnesses and tendered documentary and material evidence. Prosecution witnesses included family members of the victim, local shopkeepers, neighbours, police officers, medical experts, and forensic personnel. Witnesses testified that the victim was last seen with the appellants and that one of them had purchased chocolates and biri (local cigarettes) before taking the victim towards the agricultural field.

Multiple witnesses confirmed that on the showing of the appellants, the police recovered the dead body of the victim from a field. Further recovery included perishable items such as chocolates, burnt biri stubs, and clothing articles. The police also recovered a locket with the photograph of the victim from the house of one appellant.

The post-mortem report and testimony of the medical officer confirmed that the victim had sustained injuries in the private parts due to the insertion of a bamboo stick and had died due to strangulation. The age of the victim was corroborated through her birth certificate submitted by her father.

The appellants were examined under Section 313 of the Criminal Procedure Code, wherein both denied the charges and declined to produce any evidence. One of the appellants failed to explain his presence with the victim at the time she was last seen, while the other could not account for the presence of the victim’s locket in his residence.

The Trial Court convicted both appellants under Sections 376DB, 302, 34, 201, 363, and 365 of the Indian Penal Code and Section 6 of the POCSO Act. On June 28, 2023, the learned Additional Sessions Judge sentenced both appellants to death, finding the case to fall within the category of the "rarest of rare."

The Division Bench recorded, "Prosecution has been able to establish beyond reasonable doubt that the victim was subjected to aggravated penetrative sexual assault prior to her death by strangulation." The post-mortem report, marked as Exhibit 26, was supported by the testimony of PW 26, who confirmed that injuries to the victim's private parts were consistent with sexual assault using a bamboo stick.

With regard to the evidentiary chain, the Court stated, "PW 1 has seen the appellant No. 1 and the victim together when, they came to his shop to buy chocolate and biri... PW 5 and 7 have seen the appellant No. 1 and the victim together at their house... PW 8 is the last prosecution witness who had last seen the appellant No. 1 and the victim together." The Court observed that appellant No. 1 did not offer any explanation during his Section 313 CrPC examination.

The Bench further noted, "Appellant No. 2 has not been able to explain the presence of the locket containing the picture of the victim at his residence." Recovery of the dead body and related articles were corroborated by multiple prosecution witnesses, including PW 2, 4, 6, 12, and 21.

Addressing the minor discrepancies in witness testimony, the Court observed, "The dead body was found under shrubs in a canal situated in an agricultural field... The alleged discrepancy of the description... are not material." Regarding the delay in recovery of articles, the Court stated, "Recoveries had been made on the appellants showing the articles including the dead body. Therefore, it cannot be said that, there was a delay..."

On the credibility of witnesses, the Court noted, "These prosecution witnesses should not be disbelieved merely on the ground of their illiteracy." The Court also found no material contradictions in statements under Section 164 CrPC vis-à-vis trial testimonies.

Regarding sentencing, the High Court recorded that the Trial Court had applied the crime test, criminal test, and rarest of rare test before imposing death. However, upon review, the Division Bench found that the criteria under Manoj and Others v. State of Madhya Pradesh, 2023 SCC OnLine SC 353, were not satisfied.

Quoting the judgment, the Court observed, "We are not in a position to arrive at a conclusive finding that, possibility of reformation of both the appellants stands foreclosed... Quite to the contrary, State has stated in its report dated June 9, 2025 that, rectification of appellant No. 1 is working well... conduct of the appellant No. 2 remains good..."

The Court cited the socio-economic background and mental health reports: "Appellant No. 1 is a slow learner with severe speech problem... Appellant No. 2 appears to be physically fit and is depressed with ongoing psychiatry treatment..." The Bench concluded, "Balance has to be struck between the gravity of the offence and the quantum of punishment to be imposed."

The High Court directed that, "We commute the death penalty awarded by the learned trial Judge to one of life imprisonment without the possibility of remission for a period of 60 years from the date of commission of the offence."

The Court ordered that, "A copy of this judgement and order along with the trial Court records be remitted to the appropriate Court forthwith." It further directed that, "Any warrant issued by the appropriate court with regard thereto in respect of the appellants, stands modified in terms of this judgement and order."

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Additionally, the Bench instructed that, "Department shall inform the Correctional Home, where the appellants are lodged, as to this judgement and order, forthwith. Such Correctional Home shall record the fact of commutation of death penalty of each of the appellants, to the sentence awarded by this judgement and order, in their records."

Finally, the Court stated, "Period of detention already undergone by the appellants shall be set off against the substantive punishment in terms of the provisions contained in Section 428 of the Criminal Procedure Code." The death reference and connected criminal appeal were disposed of accordingly.

Advocates Representing the Parties:

For the Appellants: Mr. Kallol Mondal, Learned Senior Advocate; Mr. Krishan Ray, Advocate; Mr. Souvik Das, Advocate; Mr. Anamitra Banerjee, Advocate; Mr. Akbar Laskar, Advocate

For the State: Mr. Debasish Roy, Learned Public Prosecutor; Mr. Partha Pratim Das, Learned Advocate; Mr. Saryati Datta, Advocate

Case Title: The State of West Bengal v. Fagun Mandi @ Pui and Another

Case Number: DR 3 of 2023 with CRA (DB) 176 of 2024

Bench: Justice Debangsu Basak, Justice Md. Shabbar Rashidi