JOYMALYA BAGCHI,J. - (1.) Within a month from the promulgation of the Criminal Law (Amendment) Act, 2013 i.e. Act of XIII of 2013 redefining the penal contours of the offence of rape and proposing more severe punishment for such deplorable act, an innocent 13 year old girl was raped and strangulated amongst tea bushes of Mathura tea garden. In the morning of 27.2.2013 her lifeless body in a half naked condition with a rope tied round her neck was found in the tea garden by P.W.2, a worker in the garden. It appears from the deposition of the mother of the victim, P.W.3 that in the evening of the previous day i.e. 26.2.2013 the victim had gone with the appellant, a neighbour, in his bicycle to a local market. She did not return. Futile searches were undertaken in the night and thereafter in the morning. Upon hearing that a dead body had been found in the tea garden, P.W.3 along with her husband and others rushed to the spot. On the written complaint lodged by her husband, Ismail Toppo (since deceased), first information report being Alipurduar P. S. Case No.79 of 2013 dated 27.2.2013 under Section 376(2)(f)/302 of the Indian Penal Code came to be registered against the appellant. The appellant was arrested and made a confessional statement before the investigating officer, P.W.23 on 27.2.2013. Pursuant to such leading statement of the appellant, panty of the victim girl was recovered from a place amongst the tea bushes 50 feet away from where her dead body was found. Post Mortem Doctor, P.W.20 opined that the victim had been raped and had died due to strangulation which was ante mortem and homicidal in nature. In conclusion of investigation charge sheet was filed against the appellant. The case was committed to the Court of Sessions and charges were framed under Section 376(2)(f)/302 of the Indian Penal Code. Appellant pleaded not guilty and claimed to be tried. Prosecution examined 23 witnesses in support of its case. The defence of the appellant was one of innocence and false implication. He, however, did not examine any witness to probabilise such defence. In conclusion of trial, the trial judge by judgment and order dated 5.5.2017 and 6.5.2017, while holding that the prosecution case does not attract offences under Section 376(2)(f) of the Indian Penal Code, convicted the appellant for commission of offence punishable under Section 376(2)/302 of the Indian Penal Code. Holding that the offence of rape and murder was an act of inhuman monstrosity which shocked judicial conscience and as there was no mitigating circumstance in favour of the appellant, the trial court awarded the extreme penalty of death and a fine of Rs.20,000/- in default to suffer simple imprisonment for one year for the offence punishable under Section 302 of the Indian Penal Code and rigorous imprisonment for life and a fine of Rs.10,000/- in default to suffer simple imprisonment for 10 months more for the offence punishable under Section 376(2) of the Indian Penal Code upon the appellant.
(2.) Being aggrieved by the aforesaid judgment and order of conviction and sentence, the appellant has preferred the present appeal while the death reference No.4 of 2017 was registered for confirmation of death sentence imposed on the appellant.
(3.) Mr. Jayanta Narayan Chatterjee, learned Counsel appearing on behalf of the appellant argued that the prosecution evidence does not form a complete chain unerringly pointing to his guilt. Evidence of P.W.3 that she saw her daughter accompanying the appellant ought to be taken with a pinch of salt as she was inside the room and could not have seen the appellant accompany the victim, as alleged. Evidence of P.W.5, brother of the victim also suffers from various contradictions and inconsistencies. Other witnesses viz., P.W.4, P.W.11 and P.W.15 also contradict one another with regard to their presence as well as the manner in which they had seen the appellant accompanying the victim. In fact, P.W.11 stated that the lady who was accompanying the appellant was of the same size as the appellant and was wearing a salwar kamiz - clearly improbabilising the prosecution case. Conduct of the prosecution witnesses particularly P.W.3, mother of the victim in not enquiring from the appellant about the whereabouts of her daughter in the night of 26.2.2013 throws grave doubt whether the witness had at all seen the victim leave with the appellant. Extra judicial confession relied upon by the prosecution is highly artificial and does not inspire confidence. P.W.3, mother of the victim has not corroborated the evidence of P.W.6 with regard to the extra judicial confession although the latter claimed that P.W.3 was present at the spot at the material point of time. Evidence of P.W.12 with regard to extra judicial confession is bereft of particulars with regard to time and manner in which such confession was made. Furthermore, he was belatedly examined before the Magistrate and there is no explanation why P.W.12 kept mum notwithstanding the knowledge of purported confession being made to him. Recovery of the panty of the victim pursuant to the leading statement of the appellant is shrouded in mystery. The said wearing apparel had been identified by the mother of the victim. There is an inexplicable delay of four days in recovering the said article of clothing although the appellant is said to have made the confessional statement on 27.2.2013. It is also relevant to note that the statements of witnesses P.W.7 and P.W.8, witnesses to the recovery, are at variance to one another and it appears that the said witnesses had enmity with the appellant. Investigation of the case suffers from grave deficiencies and/or defect. No forensic report with regard to vaginal swab and wearing apparel of the victim has been placed on record. D.N.A. profiling either of the victim or of the appellant as required under Section 164A and 53A of the Code of Criminal Procedure has not been undertaken. Although trial court held that the prosecution has failed to make out a case under Section 376(2)(f) of the Indian Penal Code, it proceeded in a laconic manner to hold the appellant guilty under Section 376(2) of the Indian Penal Code without specifying the relevant clause in the said provision under which the appellant was found guilty. Without prejudice to the aforesaid submissions, it was argued that the prosecution case which is riddled with so many inconsistencies and/or contradictions does not merit awarding of death penalty. On the other hand, learned Counsel prayed for acquittal of the appellant.;