Jay Sengupta, J
1. This appeal is directed against a judgment and order of conviction dated 30th March 2005 and sentence dated 31st March 2005 passed by the
Learned Additional Sessions Judge, 1st Fast Track Court, Jangipur, Murshidabad in Sessions Trial No. 05/2004: Sessions SL No. 103/2004, thereby
convicting and sentencing the appellant no. 1 to suffer rigorous imprisonment for life and to pay a fine of Rs. 5000/-, in default to suffer simple
imprisonment for one month for committing an offence under Section 376 of the Penal Code, convicting and sentencing the appellant nos. 1 to 4 each
to suffer rigorous imprisonment for life and to pay a fine of Rs. 5000/-, in default to suffer simple imprisonment for one month for committing the
offence under Section 302 read with Section 34 of the Penal Code and further convicting and sentencing the appellant nos. 2 to 4 each to suffer
rigorous imprisonment for three years and to pay a fine of Rs. 1000/-, in default to suffer imprisonment for one month for committing the offence
under Section 201 read with Section 34 of the Penal Code, all sentences having to run concurrently.
2. By an application under Section 156(3) of the Code of Criminal Procedure affirmed on 12th September 2003, PW 1 filed a complaint before the
Learned Sub Divisional Judicial Magistrate, Jangipur, Murshidabad alleging commission of offences under Sections 201, 302, 376 of the Penal Code by
the present appellants in respect of her minor daughter Kalpana on 31st March 2003. She alleged that due to severe threats given by the accused, the
informant could not come before the Learned Court although the police had taken no action over the alleged offences. Pursuant to the direction
passed under Section 156 (3) of the Code, Farakka Police Station Case No. 20/2004 dated 29th February 2004 was started against the present
appellants for commission of offences under Sections 201, 302, 376 of the Penal Code. The allegations made by the de facto complainant in the said
First Information Report were as under:-
The accused 1, 2, 3 and 4 lived right next door to the complainant.
The daughter of the complainant was aged about 14 years.
At 6 p.m. on the day of occurrence the accused no. 1 told the daughter of complainant that his mother had sent for her for some urgent reason.
Accordingly, she told her mother that her next door neighbour Minati Halder had sent for her and asked whether she should go. As the complainant
consented, she went to Minati’s place. The complainant waited for quite a while, but as Kalpana did not return she went to Minati’s house.
There she found her daughter lying in the room, all but dead and almost naked with her pants and clothes lying around blood-stained. As soon as the
complainant entered the room, the accused no. 1 ran away. The complainant asked her daughter about who had done this to her. The victim girl said
that Ujjal Halder (of that household) called her there on a false pretext and taking advantage of the vacant house, forcibly raped her. When she said
she would tell this to all, he tried to throttle her. Then as the complainant raised a cry, the villagers and the people of the household came there and
heard this. The accused no. 3 throttled the victim girl lest she would talk. Then as the people of the complainant’s household and the villagers
came to see the aftermath, the accused no. 2, 3 and 4 ordered everyone out and shut the door, saying that they would take her to the hospital
themselves.
After a while, the appellants proceeded with the victim girl in a van towards Beniagram P.H.C. Hospital. She died on the way. After a while, as the
aforesaid witnesses went to the hospital the doctor said that the victim girl had died and the accused had taken her to the cremation ground for
burning. As the aforesaid witnesses went to Beniagram cremation ground, they found accused no. 2, 4 and some other unknown people burning the
victim girl in the cremation ground.
As the witnesses created an uproar, the accused threatened that they would settle the issue in the village and if people informed the police, they would
kill them. The above incident was intimated to the Farakka Police Station in writing through another person. But the police then took no action.
3. Investigation commenced. The Investigating Officer prepared a sketch map and examined witnesses. As the dead body of the victim was forcibly
cremated several months ago, no post-mortem examination of the deadbody could be held. After completion of investigation, PW 14, the Investigating
Officer submitted a charge-sheet dated 21st May 2004 under Sections 201, 302, 376 of the Penal Code. On 12th August 2004 charges were framed
against the appellant no. 1 under Section 376 of the Penal Code and against all the four appellants under Section 302 read with Section 34 of the Penal
Code as also under Section 201 read with Section 34 of the Penal Code.
4. During trial the prosecution examined 14 witnesses to establish its case. The case of the defence was mainly a denial of the prosecution case.
5. From a careful perusal of the evidence on record, it appears that PW 1 was the de facto complainant of the case and the mother of the minor
victim girl. She fully supported her allegations made in the First Information Report. She contended that the appellants threatened them and no action
was taken by the police despite the crimes being intimated to them. She deposed about a ‘salishi’ or ‘bichar’ that took place after 2/4
days. In fact the ‘bichar’ took place twice. She alleged that the accused had offered money to her, but she refused to accept the same. In her
cross, she categorically said that when she went to see her daughter, the appellant no. 4 pulled her down from the van in which the appellants carried
her daughter allegedly for treatment. PW 2 was a co-villager and a post-occurrence witness. She deposed that the victim told her that the appellant
no. 1 had ravished her. After the appellant no. 1 tried to throttle the victim, the appellant no. 2 too came and throttled the victim. Seeing all these, PW
1 the mother of the victim became ill. The appellants 2, 3 and 4 drove them out of their house. In her cross-examination PW 2 vouched that she had
stated to the police that she saw the appellant no. 2 throttling the victim girl and that the appellant no. 1 was also going to throttle the victim. She
admitted that PW 1 was her ‘ja’. She also stated that the accused were one group and the witnesses were the other group. PW 3 was a co-
villager and an uncle of the victim. He too was a post-occurrence witness. The victim told him as well as PW 1 that the appellant no. 1 had raped her
and had tried to throttle her.
The appellant no. 2 also tried to throttle her. The accused then drove them out. He deposed that the appellants then took the victim away in the name
taking her to a hospital. The local doctor, Dr. Pandit said that the victim was brought dead. The appellant thereafter took away the dead body and
burnt it without any post-mortem examination. After that the appellant nos. 2, 3 and 4 threatened him. They further stated that they would do some
‘bichar’ in the village only. In his cross-examination PW 3 stated that there was a panchayat member in the village and a chowkidar. But, he
was not doing his duty properly. He deposed that in the burning ghat at that time there were about 8/10 persons. The ‘dom’ or the’
‘ijaradar’ was actually not present there. PW 4 was a co-villager and a post-occurrence witness to the incident. He saw the victim lying naked.
PW 1 told him about the incident. After that the appellants 2, 3 and 4 threatened her that they would assault her and they ousted PW 4 from their
house. The local doctor Dr. Sajal Pandit stated that the victim was brought dead to him. On their way back, PW 4 could see the burning ghat. They all
asked the appellants 2, 3 and 4 as to why they were burning the dead body of the victim without conducting post-mortem examination. But the said
appellants did not allow them to stay near the burning ghat and they stated that they would do ‘bichar’ of the matter in the villager itself. PW 5
was the father of the victim. At the time of the incident he had been to the river for catching fish. After coming back home at about 3 O’clock in
the night, he found his daughter absent and learnt that she was taken to the burning ghat. Then he went and saw the appellants 2, 3 and 4 and some
others burning the dead body of his daughter. When half of the body was burnt, the said appellants threatened him as a result of which he came back.
PW 6 was a neighbour of the victim and a post-occurrence witness. She saw the victim lying naked on floor of the appellant’s house with clothes
stained with blood. The victim’s mother narrated the incidence to her. She also saw the appellant no. 2 throttle the victim and thereafter the
appellant no. 2 threatened her and drove her out of their house. PW 6 deposed that at that time the victim was still alive, but the appellants brought a
van and took her away. In her cross, she stated that she told the police that she had seen the victim in almost senseless condition. PW 7 was a
neighbour of the victim. Hearing hue and cry raised by the victim’s mother, she went to the appellant’s house and saw that the victim was
lying on the floor of the house. The victim’s mother narrated the incident to her. The appellant no. 1 tried to throttle the victim, but thereafter fled
away. Then the appellant no. 2 throttled the victim and forcibly ousted them from the house. After that the appellants went to a burning ghat and
cremated the victim. In her cross, PW 7 deposed that she stated to the police that she had seen the victim in the appellant’s house in unconscious
state. She also stated to the police that the appellant no. 2 had throttled the victim and the appellant no. 1 had tried to throttle her. She admitted that
there were divisions in the village, the accused belonged to one division and the others belonged to another division. PW 8 was a doctor who examined
the appellant no. 1 and found him sexually capable. PW 9 was a neighbour of the victim. He heard about the incident from others in the village. PW
10 was another neighbour who admitted his signature on Ext.3 which was a mass petition given to the police in respect of cremation of the
victim’s dead body without the parents’ permission. PW 11 was a learned Advocate who prepared the de facto complainant’s petition
under Section 156 (3) of the Code. PW 12 was the victim’s brother and a pre-occurrence witness to the incident. The appellant no. 1 had called
the victim to his house. Thereafter PW 12 went to the market and came back after the incident and found his mother crying. In the cross-examination
he stated that the police had arrested the accused after 3/ 4 days of the incident. PW 13 was a co-villager who had turned hostile. PW 14 was the
Investigating Officer of the case. He examined available witnesses and submitted a charge-sheet against the appellants under Sections 376, 301, 201,
34 of the Penal Code. In his cross-examination, he admitted that the burning ghat was not a registered one. In his answer to question no. 8 under
Section 313 of the Code, the appellant no. 1 stated that he did not know whether the victim’s father killed her, but the said father was the one who
had burnt her. Likewise in his answer to question no. 9, the appellant no. 1 reiterated that the victim’s father had burnt her.
6. The Learned Advocate appearing on behalf of the appellants submitted that there was an inordinate delay, in filing the complaint, of more than five
months and the same was not properly explained. He submitted that even the purported initial intimation to the police about the incident was neither
proved nor explained. According to him, mere saying that an intimation was sent to police is not enough. As per the Learned Advocate the only
evidence present in the case is alleged verbal dying declaration, which is itself a very weak piece of evidence. The Learned Advocate submitted that
the appellant no. 1 did not murder the victim nor was there any medical evidence on rape or murder. He wondered as to why the doctor to whom the
victim was taken was not examined. Moreover, if the intention were to murder, then the appellants would not have taken the victim to a doctor, but
would have directly proceeded for the burning ghat. He further submitted that there was no document of any ‘salish’ or ‘bichar’. Even
the so-called mass petition was not exhibited. The Learned Advocate submitted that PW 2 was contradicted by the Investigating Officer over the
issue whether she saw the appellant no. 2 throttle the victim or the appellant no. 1 for that matter throttle the victim. According to the Learned
Advocate, PW 2’s deposition that it was discussed about who would be accused and that there were two divisions in the village exposed the
malice of the informant’s side in falsely implicating the appellants. He also referred to a cross-examination of PW 3 which mentioned that the
local people burnt the body. The Investigating Officer also deposed that PW 4 did not state that he had seen the appellant no. 2 throttling the victim.
The Learned Advocate relied on a few decisions on the question of delay in lodging First Information Report and the need to explain the said delay.
The decisions are â€" AIR 73 SC 501: Thulia Kali vs. The State of Tamil Nadu; (1994) 5 SCC 188: Mehraj Singh (L/Nk.) vs. State of U.P.; AIR
2007 SC 155: Ramdas & Ors. vs. State of Maharashtra; (2014) 9 SCC 365: Ramaiah @ Rama vs. State of Karnataka. On the question of reliance on
a dying declaration made only to the victim’s mother, he relied on (2001) SCC (Cri) 1148, Arvind Singh vs. State of Bihar.
7. The Learned Advocate appearing on behalf of the State strongly supported the conviction and sentence. He submitted that the incidents
commenced from the victim going to the appellant’s house upon the appellant no. 1’s call and ended at the burning ghat. All these long the
victim was under the control of the appellants. As the appellants had full knowledge of the incident, they should have explained as to how the victim
got killed and illegally cremated. There were several witnesses like PWs 1, 2, 3, 4, 6 and 7 to the verbal dying declaration. According to PWs 1 and 2,
the appellants took away the dead body. PWs 2, 3 and 4 saw the appellant no. 1 throttle the victim. PWs 1, 6 and 7 were the ones before whom the
victim said that the appellant no. 1 tried to throttle and kill her. PWs 2, 3, 6 and 7 raised the question before the appellants as to why they did not send
the dead body of the victim for post-mortem before cremation. PW 4 was a post-occurrence witness who saw throttling of the victim by the appellant
nos. 1 and 2. PWs 1, 4 and 12 said that the incident was reported to police and police came and assured them that the police would inquire further and
take appropriate steps. PWs 3, 4 and 5 saw burning of the dead body. PWs 1, 2, 3, 4, 6 and 7 saw the appellant no. 2 throttle the victim. He submitted
that threats were given by the appellants not to report to the police. The Learned Advocate further submitted that a ‘bichar’ was held. As
police did not do anything, the de facto complainant filed a complaint under Section 156 (3) of the Code. Delay has thus been well explained.
8. We heard the submissions of the Learned Advocates appearing on behalf of both the parties and carefully went through the evidence and other
materials on record in order to assess the correctness of the judgment and order of conviction and sentence.
9. First, we agree with the Learned Counsel appearing for the appellants that there is a long delay of more than five months in filing the complaint.
But, we do not agree with his contention that the delay was not properly explained. It is a most unfortunate case where the de facto complainant
found her daughter ravished by the appellant no. 1, then throttled by the appellant nos. 1 and 2 and thereafter the victim forcibly taken away by all the
appellants in the garb of going for medical treatment and finally the victim deceased surreptitiously and illegally cremated in a burning ghat without any
post-mortem examination and even without the consent of the victim’s parents. It appears from the evidence of some witnesses that the accused
and the victims and others belonged to different groups, without any elaboration on the nature of distinction. The only distinction between the accused
and the others seems to be that between the powerful and the weak. The threats given by the appellants were so severe and ominous that the
victim’s family could not immediately react and were made to wait for a ‘bichar’ in the village as was rather condescendingly acceded to
by the appellants. It also appears from the evidence of PWs 1, 10 and 12 that the police was intimated about and/or was aware of the incident. In fact,
Ext. 3 containing a signature of PW 10, a neighbour, indicated that a mass petition was given to the police in respect of the cremation of the
victim’s dead body without the parents’ permission. It appears that police came to the place after the incident, but did not take any steps, far
less lodge a First Information Report. It is quite astonishing that after the criminal proceedings were finally initiated, the reason why the police did not
take any steps was not looked into. In any event, the circumstances as referred above provide a good explanation for the delay in lodging the
complaint.
10. From the evidence of PW 1, the mother of the victim and PW 12, the victim’s brother it is clear that the appellant no. 1 had asked the minor
victim to come to their house on the pretext that his mother had asked for her. After taking permission from her mother, the victim girl went to the
appellant’s house. There, by taking advantage of absence of others, the appellant no. 1 raped the victim. According to the statements given by the
victim to other witnesses like PWs 1, 2, 3, 4 and 7 after committing such crime, the appellant no. 1 throttled her as she stated that she would tell others
about the incident. PW 6 saw the appellant no. 1 throttle the victim. When the victim girl did not return home for sometime, her mother PW 1 went to
the house of the appellants and found the victim girl lying practically naked on the floor of the room. Seeing PW 1, the appellant no. 1 fled away from
inside the room. The victim then told PW 1 about the incident. Thereafter the appellant no. 2 also came and tried to throttle the victim. By this time
upon hearing the hue and cry raised by PW 1, other neighbours like PWs 3, 4 and 6 had come to the appellant’s house. They too saw the victim
girl in such dishabille condition. The victim narrated the incident to other independent witnesses like PWs 3, 4, 6 and 7. PWs 2, 3 and 4 saw the
appellant no. 2 throttle the victim. Thereafter the appellants, in an ostensible use of their relatively elevated status and position of influence, ousted all
the visitors from their house. Then the appellants took the victim girl in a vehicle purportedly to see a doctor. In fact, the appellant no. 4 pushed away
PW 1 when she tried to get into the car. There is no witness about what happened inside the vehicle. But, the local doctor Dr. Sajal Pandit to whom
the appellants took the victim stated to other witnesses that he had found the victim brought dead. Thereafter without intimating the police and waiting
for a post-mortem examination over the dead body and without any kind of permission from the victim’s parents, the appellants took the dead body
to an unofficial burning ghat and illegally cremated the dead body. PWs 3, 4 and 5 were the witnesses to such cremation. What is significant is that
such was the power and influence of the appellants that even then no one could muster the courage to protest or to prevent such illegal cremation.
11. It is abundantly clear from the evidence on record that after the rape of the victim girl, the appellants forcibly kept her in their custody. Yet, the
appellants failed to explain as to how the victim died while in their exclusive custody. This circumstance acts as an additional link in the chain of
circumstances appearing against the appellants.
12. The non-examination of the doctor to whom the victim was taken was a gross error committed by the Investigating Officer. But, that does not
take away the copious amount of evidence adduced by others about the sequence of events.
13. Nevertheless, it appears from the circumstances that the appellant took the victim to a doctor. We agree with the submissions of the Learned
Advocate for the appellants that this act of the appellants in taking the victim to the doctor robs the prosecution of its sheen that the appellants
possessed the necessary intent to murder the victim. This would rather be indicative of an offence of culpable homicide not amounting to murder.
14. Once they were certain about the death of the victim, the appellant nos. 2, 3 and 4 brazenly took away the deadbody to an unauthorised cremation
ground and illegally burnt the deadbody so that no evidence would remain of the crimes. This clearly attracts Section 201 of the Penal Code.
15. The premeditation of the appellant no. 1 as evinced by the depositions of PWs 1 and 12, the victim being found in an exhausted and dishabille
condition and the victim’s dying declarations made to several witnesses including independent ones clearly establish the commission of rape upon
the victim by the appellant no. 1. The independent witnesses were simple villagers and there was no evidence forthcoming that they had any animus
for the accused. Therefore, there is no reason to disbelieve the evidence adduced by such independent witnesses.
16. Although the corpus delicti is not available in the present case due to obvious reasons, there are credible independent witnesses to the facts and
circumstances of the case which complete a chain unerringly pointing towards the guilt of the appellants. Besides, there are statements by the victim
to the mother PW 1 and PWs 2, 3, 4, 6 and 7 which can fairly be treated as dying declarations. As discussed earlier, there is no reason why the
independent witnesses like PWs 3, 4, 6 and 7 should be disbelieved.
17. On the other hand, the decisions relied upon on behalf of the appellants lay down established principles of law, but are clearly distinguishable on
facts.
18. In view of the above discussions, the conviction and sentence imposed upon the appellant no. 1 under Section 376 of the Penal Code and the
conviction and sentence imposed upon the appellant nos. 2, 3 and 4 under Section 201 read with Section 34 of the Penal Code are upheld. But, the
conviction against all the appellants under Section 302 read with Section 34 of the Penal Code is altered to one under Section 304, Part I read with
Section 34 of the Penal Code and for this each appellant is sentenced to suffer rigorous imprisonment for 10 years and to pay a fine of Rs. 10,000/-
each, in default to undergo 6 months of simple imprisonment more.
19. This appeal is thus allowed in part.
20. A copy of the judgment along with the Lower Court records shall be sent down to the learned Trial Court forthwith by a Special Messenger for
information and necessary action.
21. Urgent photostat certified copies of this judgment may be delivered to the learned Advocates for the parties, if applied for, upon compliance of all
formalities.
