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.