- (1.) The death reference Case No. 3 of 2009 and the Criminal Appeals being C.R.A. No. 553 of 2009 and C.R.A. No. 569 of 2009, all are arising out of a common judgment and order passed by the Learned Additional Sessions Judge, Fast Track, 2nd Court, Malda, whereby the Learned Judge convicted the said two Appellants, viz., Anarul Hoque and Jahangir Alam under Sections 302/34 of the Indian Penal Code, they were sentenced thereunder to death and to pay a fine of Rs. 50,000/- each in default to suffer rigorous imprisonment for 4 months. They were also convicted under Sections 376 (2)(g)/511/34 of the Indian Penal Code and sentenced to suffer half of the imprisonment for life and also under Sections 201/34 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for 7 years and to pay a fine of Rs. 2,000/- each and in default to suffer imprisonment for 15 days. While the Trial Court referred the matter to this Court for confirmation of sentence of death passed against the aforesaid two Appellants, they also challenged their conviction and sentence by filing the aforesaid two statutory appeals.
(2.) It is the case of the prosecution that one Dipali Roy, aged about 12 years and the daughter of P.W. 1 Krishna Pada Roy as usual on July 28, 2006 at 9.30 a.m. in the morning went to her school Hiralal Balika Vidyalaya where she was a student of Class VI. At about 4 p.m. after the school was over she went straight to the house of one Manik Biswas at village Gandhara for taking her tuition and she left her coaching class at around 6.30 p.m. Since even after 7 p.m. she did not returned home, her parents started searching for her and at around 12 midnight her dead body was discovered in a partly concealed condition in a jute field. It is the further case of the prosecution that these two Appellants and another, viz., Mithun Hoque used to tease her everyday and 1/2 days back the accused Jahangir Alam approached her with some immoral sex act and on the fateful day between 4/4.30 p.m. the accused Jahangir Alam, Anarul Hoque and Mithun Haque were found roaming in and around the place of occurrence. After the arrest of Jahangir Alam, according to the prosecution the said accused made a statement to the police and led to the discovery of a spade which they used for digging earth to make a pit to bury the dead body. It was the further case of the prosecution that before she was killed the accused persons violated her.
(3.) Following the discovery of the dead body, the P.W. 1 who happened to be the father of the victim reported the incident in writing to the local police station, whereupon a case under Section 376 (2)(g)/302/201/34 of the Indian Penal Code was registered against the three accused persons. The police after completion of investigation also submitted chargesheet against all the accused persons for the self-same offences. However, the case of the accused Mithun Haque was splited from the case of the accused Jahangir Alam and Anarul Hoque as he was found to be a juvenile on the date of the commission of the offence.;