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2020 Supreme(Cal) 127
IN THE HIGH COURT OF CALCUTTA
Joymalya Bagchi, Suvra Ghosh, JJ.
State Of West Bengal - Appellant
Versus
Ustab Ali - Respondent
Death Reference No. 2 of 2018; Criminal Appeal No. 130 of 2018
Decided On : 06-03-2020
Sourav Chatterjee, Advocate, Surasri Baidya, Advocate, Neguive Ahmed, Advocate, Sanjay Bardhan, Advocate
The main legal point established in the judgment is the consideration of the circumstances of the crime and the criminal for sentencing, and the setting aside of the death sentence based on the possibility of rehabilitation of the appellant.
Headnote:
Criminal Appeal - Conviction under section 302 of I.P.C. - [MURDER] - [IPC 302] - The court upheld the conviction of the appellant under section 302 of the Indian Penal Code for the murder of his wife and three minor children. The court found that the victims were set ablaze in their sleep and suffered homicidal death. The appellant's false plea of alibi and the absence of evidence of any outsider breaking into the room led to the conclusion that the appellant committed the murders. The court also considered the circumstances of the crime and the criminal, and found that the possibility of rehabilitation of the appellant was not wholly foreclosed, leading to the setting aside of the death sentence and imposition of imprisonment for life without remission for a period of thirty years.
Fact of the Case:
The appellant was convicted under section 302 of I.P.C. for the murder of his wife and three minor children. The prosecution's case was based on circumstantial evidence, including the appellant's illicit relationship and the absence of evidence of any outsider breaking into the room where the murders occurred. The appellant's false plea of alibi and the absence of evidence of any outsider breaking into the room led to the conclusion that the appellant committed the murders.
Finding of the Court:
The court found the appellant guilty of the murders based on the circumstantial evidence and the absence of evidence of any outsider breaking into the room. The court also considered the circumstances of the crime and the criminal, and found that the possibility of rehabilitation of the appellant was not wholly foreclosed, leading to the setting aside of the death sentence and imposition of imprisonment for life without remission for a period of thirty years.
Issues: The issues in the case included the establishment of the appellant's guilt based on circumstantial evidence, the absence of evidence of any outsider breaking into the room, and the consideration of the circumstances of the crime and the criminal for sentencing.
Ratio Decidendi: The court's decision was based on the appellant's false plea of alibi, the absence of evidence of any outsider breaking into the room, and the consideration of the circumstances of the crime and the criminal for sentencing.
Final Decision: The court set aside the death sentence and imposed imprisonment for life without remission for a period of thirty years.
JUDGMENT
Joymalya Bagchi, J. - The appeal and death reference are taken up for hearing analogously and are being disposed of by this common judgment and order.
2. By judgment and order dated 7.3.2018 and 8.3.2018 the learned Additional Sessions Judge, Kandi, Murshidabad in Sessions Case No.374/2015 corresponding to Sessions Trial Case No.29(09) 2015/G.R.1361/2015 convicted the appellant under section 302 of the Indian Penal Code (hereinafter referred to as 'I.P.C.') and sentenced him to death.
3. Prosecution case, as alleged against the appellant is to the effect about seven years ago the appellant married the deceased Nafija Bibi according to Muslim rites and customs. Initially their conjugal life was happy. However, after the birth of three daughters, the appellant and his in-laws subjected Nafija to physical and mental torture. It was further alleged appellant had developed illicit relation with another woman. On the night of 31.5.2015 when Nafija and her three children, namely, Amina Khatun (5 years), Marsida Khatun (3 years) and Tuhina Khatun (1 year) were sleeping in bed the appellant poured kerosene oil on them and set them on fire. As per written complaint lodged by P.W.1, Golam Mostafa, father of Nafija, Kandi P.S. Case No.529 of 2015 dated 31.5.2015 under sections 498A/304B/302/34 of I.P.C. and sections 3 and 4 of Dowry Prohibition Act was registered against the appellant and one Akbar Ali. Appellant was arrested on 1.6.2015. On 6.6.2015 one blue coloured plastic jar smelling of kerosene and some paddy straw were seized. Post-mortem report was collected and charge-sheet was filed against the appellant. Charges were framed under sections 498A/304B/302 of I.P.C. Appellant pleaded not guilty and claimed to be tried.
4. In the course of trial, prosecution examined eight witnesses and exhibited a number of documents.
5. It was the specific defence of the appellant that on the fateful night he had gone to the house of his cousin at Hijal Natun Gram to collect firewood and was not present at his residence when the incident occurred. He, however, did not lead evidence to probabilise such alibi.
6. In conclusion of trial, the trial Judge by judgment and order dated 7.3.2018 and 8.3.2018 convicted the appellant under section 302 of I.P.C. and holding the offence of murdering one's wife and three minor children fell within the category of 'rarest of rare' cases, sentenced the convict to death.
7. Hence, the present appeal and death reference.
Arguments at the Bar
8. Mr. Chatterjee, learned advocate appearing on the behalf of the appellant submitted that no one saw the appellant with the victims on the fateful day. There is no direct evidence that the appellant had murdered his wife and children. Time of occurrence has not been proved beyond doubt. It is unclear when the relations of Nafija came to the place of occurrence. While P.W.s 1 (father of the deceased Nafija Bibi), P.W. 2 (uncle of Nafija Bibi) and P.W. 4 (brother of Nafija Bibi) saw the charred bodies in the room, P.W.5 (wife of P.W.4) claimed the bodies had already been removed from the spot. None of the witnesses apart from investigating officer (P.W.7) stated they detected smell of kerosene oil from bodies of the deceased persons or the seized articles. Autopsy surgeon (P.W.6) also did not note smell of kerosene during post mortem examination. FSL report of viscera of the deceased persons produced during trial do not show presence of intoxicant in the viscera. Plastic jar was belatedly seized and was not produced in court. Neither the wearing apparels of the deceased persons nor the jar had been sent for FSL examination and the trial court notwithstanding absence of scientific evidence relied on ipse dixit of investigating officer (P.W.7) to come to a finding that the seized articles as well as the jar smelt of kerosene. No cogent evidence with regard to illicit relation between the appellant and another woman is forthcoming. Hence, motive of crime is not proved beyo
