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CALCUTTA HIGH COURT
Joymalya Bagchi and Bivas Pattanayak, JJ.
State of West Bengal and Anr. – Appellants
versus
Md. Raees Qureshi @
Hadi Qureshi and Anr. – Respondents
Death Reference No.8 of 2016 with
C.R.A. No.312 of 2017
Decided on 13.9.2022
(A) Indian Penal Code, 1860 – Section 302 – Murder of four children – Death sentence – Circumstantial evidence – Delayed examination of a witness by itself is not a ground to reject his evidence – It is not possible that every minute detail in deposition of a witness would be stated to police – Unless there is material omission in earlier statement, minor variations would not impeach credibility of witness – Victims were minor children aged between 4-10 years – Possibility of their committing suicide is wholly improbable – Evidence establishes post occurrence conduct of appellant who kept himself abreast of developments after recovery of dead bodies while he continued in hiding and did not even come to attend last rites of his own children – Motive to commit crime has been established beyond doubt – Conviction of appellant upheld – Appellant had prior history of mental illness – He suspected his wife’s fidelity and paternity of his children – Owing to his weak mental condition he may have impulsively committed crime – Sentence of death imposed on appellant commuted to one of rigorous life imprisonment without remission for 25 years and fine of Rs. 10,000/-. (Paras 13, 14, 28, 39, 40, 44, 49, 51, 53 and 54)
(B) Criminal Law – Appreciation of evidence – Whether there is a live link between ‘last seen’ theory and homicidal death of a victim must be determined on facts and circumstances of each case – Tender age and vulnerability of victim, relationship of victim and accused in whose custody he/she is last seen and nature of control custodian – Guardian exercises over ward are relevant considerations to test existence of live link between last seen theory and death of victim – When it is established that minor children of tender age are in exclusive control of parents/relations and owing to his/her immature age would not be in a position to exercise free will or movement without his supervision, it becomes incumbent on guardian to explain circumstances in which child had gone out of his custody. (Para 31)
(C) Indian Evidence Act, 1872 – Section 106 – Burden of proof – Initial burden always lies on prosecution to prove its case – When prosecution has discharged its initial burden and facts proved show circumstances leading to homicidal death of a victim are within special knowledge of accused, onus shifts upon latter – When it is disproportionately difficult for prosecution to establish facts which are specially within knowledge of accused and which latter can without difficulty or inconvenience prove, onus shall shift upon accused to prove such fact. (Paras 33 and 34)
Result:Death Reference and Criminal Appeal disposed of.
JUDGMENT
Joymalya Bagchi, J.—
Genesis of the Appeal:—
The death reference and the criminal appeal have been directed against the judgment and order dated 25.07.2016 and 26.07.2016 passed by the Additional Sessions Judge, Uluberia, Howrah in Sessions Trial No. 91 of 2012 convicting the appellant for commission of offence punishable under sections 302 of the Indian Penal Code and sentenced him to death.
2. On 21st November, 2011 one Md. Firoz Qureshi (P.W. 1) lodged a police complaint at Howrah police station alleging on 14th November, 2011 his brother-in-law, the appellant herein, took his son, namely, Abdul Qadir (aged 6 years) and two daughters, namely, Rounak Khatun (aged 4 years) and Alisha Khatun (aged 2½ years) and also the son of Md. Murtaja, namely, Shahid Hasan (aged 6 years) from a wedding ceremony at Al-Hayat and proceeded towards Kukur Bhukha Bridge. Appellant did not return. Neither did the children. After few hours the de-facto complainant and others started searching for them. Around 1:30 hours on the next day, a missing diary was lodged at Howrah P.S. being G.D. Entry No. 1300/11. Wife of the appellant tried to contact him on his mobile phone which was switched off. They continued to search for the missing children. On Wednesday morning, that is, 16.11.2011 the defacto complainant read the news in the newspaper that three bodies of children drowned at Bagnan had been recovered. He along with others went to Bagnan Police Station and identified the bodies as those of the son and daughters of the appellant. After sometime another dead body of a child was brought to the Police Station. He was identified as Shahid Hossain, son of one Md. Murtaja. On that day, appellant called his younger brother Md. Mujahid Qureshi (P.W. 3). Subsequently, on 20.11.2011 at 3:05 p.m. appellant again called his brother and stated he had killed the children putting an end to the story. He also enquired whether the bodies of the children have been interred or not. Suspecting the involvement of the appellant in the murder of four minor children, P.W. 1, Md. Firoz Qureshi had lodged the aforesaid written complaint at Howrah Police Station. The case was transferred on the point of jurisdiction to Bagnan Police Station and was numbered as Bagnan Police Station Case No. 11/2012 dated 11.01.2012 under sections 302 and 201 I.P.C. Initially investigation in the instant case was conducted by S.I. Rabiul Haque (P.W. 25), attached to the Howrah Police Station; thereafter by S.I. Shyamal Dutta (P.W. 33), attached to Bagnan Police Station. Subsequently, investigation was transferred to C.I.D., West Bengal and taken over by S.I. Debasish Banerjee, (P.W. 34) attached to D.D.I. Howrah.
3. In the course of investigation, appellant who had absconded to Uttar Pradesh, was sought to be apprehended. P.W. 25 went to Pratapgarh to arrest him but failed. Finally, when he was admitted at Bagnan Rural Hospital on 05.12.2011, he was arrested on 07.12.2011. Charge-sheet was filed against him. In the course of trial, prosecution examined 34 witnesses and exhibited a number of documents. Defence of the appellant was one of innocence and false implication.
4. In conclusion of trial, the trial Judge by the impugned judgment and order convicted and sentenced the appellant, as aforesaid. Hence, the present reference as well as the appeal.
Arguments at the Bar:—
5. Mr. Mukherjee, Sr. Advocate with Ms. Biswas argued there is no legally admissible evidence connecting the appellant to the murder. The case is purely based on surmises and conjectures. Circumstances relied upon by the prosecution have not been proved beyond doubt. Neither do they unerringly point to the guilt of the appellant. Missing diary lodged by P.W. 1, Md. Firoz Qureshi was not exhibited and there is unexplained delay in lodging first information report. There is inordinate delay in examining wit
(1) Delayed examination of a witness by itself is not a ground to reject his evidence.(2) When it is disproportionately difficult for prosecution to establish facts which are specially within knowled....
The judgment emphasizes the importance of establishing guilt based on a chain of circumstances and considering the balance of aggravating and mitigating circumstances in sentencing.
In terms of Section 354(3) of Cr.P.C., it is clear that normally imprisonment for life is to be awarded and only in any exceptional circumstances death sentence is required to be awarded.
The death penalty can be commuted to life imprisonment if mitigating factors outweigh aggravating circumstances, particularly demonstrating lack of premeditation or extreme brutality in the crime.
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