- (1.) THE appellant Babu Molla, appellant in CRA No. 805 of 2013 and the Appellant Manjuma Bibi, appellant in CRA No. 179 of 2014 and three others were placed on trial before the learned Additional Sessions Judge, 4th Court, Murshidabad to answer charges under section 376/34 IPC for allegedly kidnapping the victim boy Sohel Biswas aged about 5years and for killing him so that his eyes be implanted on the appellant Babu Molla who is blind. During the pendency of the trial the accused Gulamajan Molla expired and case against him was filed. However, in the said trial both Babu Molla and Manjuma Bibi were found guilty for committing the offence punishable under section 364/34 IPC and under section 302/34 IPC, whereas the other two accuseds, viz., Rijaul Molla and Firoja Bibi were found not guilty and acquitted. While Babu Molla for his conviction under section 302/34 IPC was sentenced to death and Manjuma Bibi was sentenced to suffer imprisonment for life and to pay fine with default clause for their conviction under section 364/34 IPC, both of them were sentenced to suffer rigorous imprisonment for 8 years and to pay fine of Rs. 5,000/ - each and in default to suffer rigorous imprisonment for 2 years.
(2.) THE Death Reference as well as the appeals preferred by the convicts are taken up for hearing together as the same were arising out of self -same judgment and order. It appears from the perusal of the records there was no eyewitness to the commission of the offence and the case of the prosecution entirely rests on circumstantial evidence. We find that the trial Judge at the concluding portion of his judgment has summarized the circumstances on the basis of which the appellants are convicted and those are noted below. (a) On April 6, 2009 in the morning the victim boy Sohel was playing in front of his house with a friend and thereafter he was found missing. (b) The factum of missing of the boy was testified by the PW/1 to PW7 and PW/10 to PW12 and the question of missing was not challenged by the defence during the crossexamination of the said witness. (c) On April 9, 2013 three days after the missing of the boy, at dawn it was found by PW/4 Hasina Bibi, a neighbour of both the appellants and the victim, the appellant Manjuma Bibi was throwing a sack in a doba, adjacent to their house and hearing the hue and cry raised by PW/4, the said sack was brought out from water and the dead body of the victim boy Sohel with both his eyes uprooted, was found inside. (d) On April 14, 2013 after arrest pursuant to the information given by the appellant Babu Molla and led by him, a knife, the offending weapon material Ext. 1 was seized by the police from an adjacent doba in presence of the independent witnesses. (e) Appellant Babu Molla having lost his eyesight in his both eyes and his family members were in search of eye donors for eye implantation. (f) After the recovery of the dead body, the house of the accused persons were searched and during such search, the wall of the room inside their house were found stained with blood and photographs of wall marked with blood was exhibited during the trial, being material Ext. 2.
(3.) SINCE the case in hand against the appellant is entirely based on circumstantial evidence according to the well recognized principle of criminal jurisprudence, all incriminating circumstances appearing from the evidence against them must be proved beyond all reasonable doubt and when proved, same must be consistent only with the hypothesis of guilt of the accused and not be capable of being explained by any other hypothesis, namely, the innocence of the accused. Then the chain of circumstantial evidence must be so complete that would lead to the only irresistible conclusion that the accused and none else is the perpetrator of the crime. It is also the well recognized principle of criminal jurisprudence that all incriminating piece of circumstances appearing from the evidence must be put to the accused in his examination under section 313 CrPC giving him the opportunity to explain the same. In a case based on circumstantial evidence such necessity is more rigid. It is also well settled that if there is any omission on the part of the trial court to put any such incriminating circumstances to an accused during his examination under section 313 CrPC and thereby denying the opportunity to explain the same, such circumstances ought to be excluded from consideration when it is found such omission has caused prejudice to the accused and occasioned a failure of justice. In this regard the decision of the Hon'ble Supreme Court in the case of Sharad Birdhichand Sarda Vs. State of Maharashtra, 1984 AIR(SC) 1622 where the Apex Court considered all its previous decisions on this score is quite relevant. Now, in the case at hand, we find besides 5 formal questions, 3 other questions were put to the appellant Manjuma Bibi in her examination under section 313 CrPC. The questions so put are reproduced below, Q.4. Look here, witness no. 4, Hasina Bibi has said in her evidence that about 3 years 10 months back early in the morning when she was going toward the latrine, she saw that you were throwing away a yellow bag into the pond near her latrine. Say what you have to say on this? Q.5. Look here, that witness also stated that when she raised an alarm, people from the village gathered and when later the police arrived, and upon the bag being opened, the dead body of Sohel was found with his head decapitated and eyes gouged out. Say, what you have to say about this? Q.6. See witness No. 1 Rahasan Biswas, witness No. 2 Ayub Biswas, witness No. 3 Subera Bibi, witness No. 4 Hasina Bibi, witness No. 5 Jinnat Biswas, witness No. 7 Asmat Mandal and witness No. 12 Ahsan Mandal have stated in their evidence that about 31/2 years ago you and other accuseds have murdered Sohel Biswas aged 51/2 years inside your house and gouged his eyes. What do you say to this? So far as the last question that is the question no. 6 is concerned, we find from the deposition of the witnesses that the PW/1, PW/2, PW/3, PW/4, PW/5, PW/7 and PW/12 has no direct knowledge about the killing of the minor boy victim Sohel by the appellant, they are only the witnesses to a few circumstances.;