Convict Is Of An Advanced Age Of 58 Years: Calcutta High Court Commutes Man’s Death Sentence In Minor Girl’s Rape & Murder Case

The High Court was considering a death reference and the appeal directed against the impugned judgment of sentence.

The Division Bench of Justice Md. Shabbar Rashidi and Justice Debangsu Basak said, “The wife of the convict was a working lady. This might have generated an opportunity to the convict to freely intermingle with the victim which possibly rendered into an illicit sexual assault upon the victim. Later, when the assault was 25 perpetrated, in an anxiety to get off with its consequences, the convict killed the victim and set the dead body on fire with a view to cause disappearance of evidence of crime. The convict is not reported with any criminal antecedent or unstable social behavior in the past. Moreover, he is of an advanced age of 58 years.”

Senior Advocate Kaushik Gupta represented the Appellant while Public Prosecutor Debasish Roy represented the State.

Factual Background

The de facto complainant, who was the uncle of the victim, lodged a written complaint to the effect that the victim used to work in the house of the appellant as a maid servant. In the year 2016, the de facto complainant received a telephonic call from the appellant that his niece was seriously ill. On reaching the house of the appellant, the complainant found his niece lying dead in the bathroom of the appellant’s house. The entire body of the victim was in a burnt condition caused by fire. In the written complaint itself, the de facto complainant disclosed that he suspected that the appellant had committed rape upon the victim and set her ablaze.

On the basis of such a complaint, a case was registered under Section 376 (2)(i)(k)/302 of the Indian Penal Code, together with Section 6 of the Protection of Children from Sexual Offences Act against the appellant.

Reasoning

On a perusal of the facts and the evidence on record, the Bench noted that the autopsy surgeon opined the death to be caused due to throttling. It was also opined that the victim’s body was set on fire after her death. The surgeon further opined that the flame burn of the victim was post mortem phenomena and the victim was the prey of repeated rape. “Therefore, on the basis of the testimony of PW 10 coupled with that of Exhibit 12, it is quite evident and can safely be inferred that the victim girl suffered an unnatural death. Such evidence led at the trial also establishes that the victim was subjected to sexual assault repeatedly prior to her death”, the Bench said.

It also transpired from the evidence placed on record that the victim was first killed by throttling and thereafter, there was an endeavor to annihilate the evidence of such a crime by setting the dead body ablaze. There was sufficient evidence on record that the victim was a minor at the time of the incident and a case under Section 376 (2)(i)(k)/302/201 of the Indian Penal Code, 1860 as well as Section 6 of the Protection of Children from Sexual Offences Act, 2012 was straightaway made out.

Two neighbors, who also happened to be the relatives of the convict and resided in the adjoining house, had placed the convict at the place of occurrence at the relevant point of time. As per the Bench, there was ample unimpeachable evidence on record that the victim was a minor at the time of the incident, aged about 14/15 years. The medical evidence established that the victim was subjected to repeated sexual assault prior to the incident of her death. The complainant and the victim’s mother stated in their deposition that the victim reported indecent behavior of the appellant, though she did not give the details of such behavior. She was not willing to return to the house of the appellant, but she continued due to assurances given by them to the effect that they would arrange another job for her.

The Bench concluded that the appellant alone was the perpetrator of the crime. “In such view of the facts, we find no reason to interfere with the impugned judgment of conviction passed by learned trial court in convicting the appellant for the offences punishable under Sections 376 (2)(i)(k), 302, 201 of the Indian Penal Code, 1860 as well as of Section 6 of the Protection of Children from Sexual Offences Act, 2012”, it said.

Coming to the issue of quantum of punishment, the Bench said, “ In order to hold a case as ‘rarest of rare case’ the Hon’ble Supreme Court has ordained to evaluate the circumstances on the parameters of ‘aggravating circumstances’ and ‘mitigating circumstances’. Besides, in a case of murder, it is to be conclusively evaluated that the offence was committed in a manner which can be termed as cold blooded. At the same time, age of the convict is also required to be considered. As per the directions of the Hon’ble Supreme Court, that a convict, too young and too old, should not be awarded with death penalty.”

The Bench also took note of the fact that the appellant is 58 years of age and his wife is a working lady. The Bench thus held, “Therefore, taking into consideration the entire facts and circumstances of the case discussed hereinbefore, we are minded to commute the death sentence awarded to the appellant into one of life imprisonment. However, considering the age of the appellant as well as other circumstances obtaining from the facts of the case, the imprisonment of life, so awarded to the appellant, shall mean imprisonment for life without remission until 20 years from the date of his arrest.”

Cause Title: Srimanta Tung v. State of West Bengal (Case No.: Death Reference No. 04 Of 2018)

Appearance

Appellant: Senior Advocate Kaushik Gupta, Advocate Santanu Talukdar

Respondent: Public Prosecutor Debasish Roy, APP Rudradipta Nandy, Advocate Suman De

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