Calcutta High Court: In a case involving multiple appeals and death references against a judgment and order passed by the Additional District & Sessions Judge where the appellants are convicted for heinous crimes of rape and murder committed against the victim, a division bench comprising of Ajay Kumar Gupta and Joymalya Bagchi,* JJ., held that the State had failed to prove the conspiracy and shared common intention of the appellants beyond a reasonable doubt, and the death penalty was unwarranted. The Court also stated that,
“Alternative punishment of life imprisonment for the remainder of natural life is a more humane substitute that adequately addresses societal concerns of recidivism.”
Factual Matrix
In the instant matter, the victim, a 20-year-old student, left her residence to appear for an examination. She went missing, and her brother (PW 1) reported her disappearance to the police. A search party found bloodstains in a room on an 8 Bigha plot, and the victim’s body was discovered nearby. A medical examination confirmed rape and death due to smothering. The investigation led to the arrest of several suspects, and during the course of the investigation, one appellant confessed to his guilt. DNA evidence linked him to the crime, and witnesses testified to overhearing discussions of the crime by the appellants.
The appellants were convicted for various offenses under the IPC, including rape, murder, criminal conspiracy, and abduction. The trial court sentenced the 3 appellants to death and 3 appellants to life imprisonment.
Appeals and Death References
All the convicted appellants appealed their convictions and sentences, while the State appealed the acquittals of 2 alleged accused. Additionally, as 3 accused were sentenced to death, a reference was made to the High Court to confirm the death sentences.
Rape and Murder of the victim
A member of the medical board, who conducted a post-mortem examination on the victim’s body opined that the cause of death was smothering, which was ante-mortem and homicidal in nature. He also confirmed that the victim had been sexually assaulted. These findings strongly support the prosecution’s case that the victim was both raped and murdered.
Place of occurrence
The prosecution establishes the place of occurrence based on the confession of appellant and other pieces of evidence. During a search, the semi-naked body of the victim was discovered behind the boundary wall of an 8 Bigha plot. Others, including the victim’s father, arrived at the scene and identified the victim. A rough sketch map prepared by investigating officer shows the layout, and it becomes evident that the dry land behind the boundary wall is surrounded by water bodies, accessible only through a small hole in the wall. This evidence conclusively establishes the place of occurrence.
Time of Occurrence
The victim had left for her college in the morning and was supposed to return in the afternoon after taking an examination. However, she went missing, and her body was discovered in the evening around 7:30 PM. The recovery of her personal belongings, including her school bag, admit card, student ID card, and bus concession card, corroborates the fact that she had left for college that day. Despite the absence of direct testimony from the college, these circumstances firmly establish the time of occurrence.
Judicial Confession
Referring to the case of Mohd. Ajmal Mohd. Amir Kasab v. State of Maharashtra, (2012) 9 SCC 1, the Court stated that absence of legal representation at the time of confession does not per se render it inadmissible.
The Court observed that the Magistrate had put questions to the appellant to ensure voluntariness and had assured him that he would not be remanded to police custody if he did not confess. The appellant’s confession was not made under police influence or coercion. The Court observed that the inculpatory part of appellant’s confession was corroborated by circumstantial evidence, including medical findings and witness testimonies. The Court further observed that the appellant’s belated retraction of his confession was considered an afterthought prompted by legal advice, as he did not complain of coercion or torture during earlier proceedings.
The Court found the appellant’s judicial confession to be admissible, voluntary, and truthful based on the Magistrate’s inquiries, corroborating medical evidence, and circumstantial evidence. The Court rejected the defense’s arguments and relied on the appellant’s confession to establish his involvement in the rape and murder of the victim.
DNA Evidence
The Court explained the basics of DNA profiling, including Short Tandem Repeats (STR) analysis, genotyping, and the uniqueness of an individual’s DNA. The Court emphasizes that DNA evidence is not the sole basis of conviction in this case. The Court observed that the prosecution’s case primarily relies on the defendant’s judicial confession, corroborated by other evidence.
The Court held that, despite the challenges and technical issues raised by the defense, the DNA evidence is not wholly unreliable and can be used to corroborate the case against Saiful.
Criminal conspiracy to commit rape
The court, after considering the arguments of both parties, found that the credibility of PWs 14 and 15 was questionable. They were considered “chance witnesses” as they did not provide a clear explanation for their presence at the tea stall or corroborate their story with others’ testimony. Additionally, the court noted that PWs 14 and 15 had criminal cases pending against them and had been previously arrested, which could have influenced their testimony.
The Court noted the absence of crucial witnesses and contradictory statements of chance witnesses has further weakened the prosecution’s case. The Court emphasized the need for corroboration when relying on chance witnesses. The Court held that the prosecution had failed to establish criminal conspiracy to commit rape based on the unreliable testimony of PWs. 14 and 15.
Shared Common Intention
With regards to the participation and shared common intention of other 3 appellants, in the rape and murder of the victim, the Court found that the prosecution evidence did not establish the participation and shared common intention of other appellants in the rape and murder of the victim. The victim’s brother’s delayed identification and vague statements, as well as the absence of concrete evidence linking them to the crime, raised doubts about their involvement.
Conduct of Accused and Possibility of reformation and rehabilitation
The Court observed that the “conduct of the appellants in the correctional home is satisfactory and other unrebutted materials before this Court gives rise to a reasonable belief that there is high possibility of reformation and rehabilitation of the appellants.”
The Court observed that “the trial Court erred in awarding death penalty with reference to the gravity of the offence alone. State has failed to prove conspiracy and prior concert in the crime beyond reasonable doubt. It has also not led evidence to rebut the possibility of reformation and rehabilitation.”
Court’s Decision
The Court determined that the convictions of the accused under various sections of the IPC were justified, but the death sentences awarded to them were not confirmed due to insufficient evidence of conspiracy and prior planning. Instead, both were sentenced to life imprisonment for the remainder of their natural lives.
The Court acquitted 1 appellant of all charges and upheld the acquittals of the accused, as there was no credible evidence against them. For the appellants , who were found guilty under Sections 120B and 201 of the IPC, had already served more than 10 years in prison, therefore, they were directed to pay a fine of Rs. 10,000 each, with a default sentence of three months more in prison if they failed to pay the fine.
[State of W.B. v. Saiful Ali, 2023 SCC OnLine Cal 3411, order dated 06-10-2023]
*Judgment by Justice Joymalya Bagchi
Advocates who appeared in this case :
Mr. Y.J. Dastoor, Sr. Adv., Mr. Phiroze Edulji, Mr. Sanjib Kumar Das and others, Counsel for the Appellant
Mr. Ranabir Roy Chowdhury, Md. Sabir Ahmed, Mr. Sanjay Banerjee, Mr. D.R. Ghosh, Counsel for the State
