ASHIM KUMAR ROY,J. - (1.) THE accused Md. Islam was placed on trial before the learned Additional Sessions Judge, Fast Track 3rd Court, Islampur, Uttar Dinajpur to answer charges under Section 376/511 IPC for attempting to commit rape on his daughter Parveen Khatoon and under Section 302 IPC for killing her. He was also charged under Section 324 IPC for voluntarily causing hurt to his wife Ruksana Khatoon by means of a slaughter knife, an instrument for stabbing. While in the trial, he was convicted under Section 302 of the Indian Penal Code for causing death of his daughter and sentenced to death but earned an acquittal against the charge under Section 376/511 of the Indian Penal Code. He was also convicted under Section 324 IPC for causing hurt to his wife by dangerous weapon and sentenced to suffer imprisonment for one year and to pay a fine of Rs. 1000/- and in default, to suffer simple imprisonment for 6 months. The acquittal of the appellant of the charge under Section 376/511 of the Indian Penal Code was neither challenged either on behalf of the State or on behalf of the de-facto complainant, as have been reported by the learned Public Prosecutor.
(2.) ON April 1, 2013 the Death Reference 2 of 2013, was listed before this Bench. When it was found the preparation of paper book is complete and the death reference was ready for hearing. However, having found no appeal has been preferred by the convict, at once we directed the office to issue notice to him, with a further direction that he should be produced before us in person on the returnable date. Accordingly, on April 1, 2013 the convict was produced before us, when we first apprised him of his rights to resist the Death Reference and defend him as also his right to prefer appeal against his conviction. At the same time we also apprised him if he is unable to engage a lawyer at his own cost then also he is legally entitled to the service of a competent criminal lawyer to defend him in the Death Reference and prefer appeal against his conviction completely at the cost of the State. However, on his prayer we allowed an adjournment for 10 days. On the next day when the convict was produced from custody the Welfare Officer of the Correctional Home was also present in Court and we were informed by him that as desired by the convict intimation was sent to his brother Md. Lal and his mother requesting them to meet him at the Correctional Home, but no service return was received. Thereafter on 16th of April 2013 the convict was again produced before us and on that day both the Welfare Officer and the Superintendent of Correctional Home were also present in Court and we were informed by them that already his mother had expired and his brother has refused to meet him. In such a situation we engaged Mr. Sandipan Ganguly, a very competent lawyer practising in the criminal side of this Court for more than 16 years and also in the State panel to defend the appellant with a junior of his choice. Thereafter, on 23rd of April 2013 a memo of appeal has been filed on behalf of the convict challenging the order of conviction and sentence. The appeal was then admitted and both the said criminal appeal and the Death Reference were taken up for hearing together. The prosecution case in a nutshell is as follows: On 10th April 2011 when the de-facto complainant, i.e., the wife of the appellant was sleeping with her minor children, at about 9.30 p.m. the appellant came there and tried to rape their daughter Parveen Khatoon. As the convict and her daughter tried to resist him, he attacked the de-facto complainant and assaulted her with his butcher- knife and caused bleeding injuries on her right leg. In the meanwhile, the daughter of the convict tried to run away, but the convict chased her for some distance and after she was caught, he assaulted her with the butcher's knife and killed her. Hearing the noise the other children of the de-facto complainant sleeping there woke up and the villagers rushed to the spot hearing their cries and the appellant fled away.
(3.) THIS is a case which is essentially based on the eyewitnesses' account of assault. They are PW/1, Ruksana Khatoon, the de-facto complainant, the mother of the victim and the wife of the appellant, PW/2 Ashique, the son of the appellant, PW/3 Simran Khatoon, the daughter of the appellant, PW/4 Saifun, PW/5 Khus Md., PW/6 Dipen Ray and PW/9 Giasuddin are all neighbours and they are post occurrence witnesses. PW/7 Dr. Binoy Bhusan Bera is the Autopsy Surgeon who held the postmortem over the dead body. PW/8 Dr. Jiban Krishna Bhaduri is the doctor who treated the de-facto complainant for the injuries she sustained on being assaulted by the appellant. PW/10 Dilip Jamadar is an employee of Islampur Sub-Divisional Hospital where postmortem was held. PW/11 Gurudas Saha is the scribe of the FIR. PW/12 Shrutirupa Ghosh is a Judicial Magistrate who recorded the statement under Section 164 CrPC of the witnesses. PW/13 Samir Tamang is the Investigating Officer of the case and PW/14 Mritunjay Singh is a police personnel. From the side of the defence no witness was examined. It appears from the trend of cross-examination and the reply given by the convict while was questioned under Section 313 CrPC that he has been falsely implicated in the said case.;