*MURDER FOR FAILED ATTEMPT TO RAPE.
IN THE COURT OF THE ADDITIONAL SESSIONS JUDGE,
FAST TRACK COURT 1ST COURT, ASANSOL.
Present:- H. Singh, Additional Sessions Judge,
Fast Track, 1st Court, Asansol.
Sessions Case No.8/95, S.T. No.18/03
State vs. Sasthi Bouri.
Date of delivery of Judgement: 26-08-2003.
The complainant Durlav Bourti s/o Fagu Bouri of Jagatdih under P.S. Asansosl on 31.03.1993 at 18.35 hours lodged an F.I.R. against accused Kandan Bouri and Sasthi Bouri both sons of late Gunda Bouri of Vidyanandapur Village under P.S. Hirapur in respect of an incident dated 16.03.93 particularly regarding torture that continued from 1989 to 29..03.93 upon the deceased sister Smt. Archana Bouri w/o accused Kandan Bouri at the hands of the accused persons at their house at Vidyanandapur. The complainant in his F.I.R. alleged that his fourth sister Archana Bouri aged about 19 years married Kandan BHouri s/o Gunda Bouri of Village Vidyanandapur under Hirapur P.S. and since after marriage she was subjected to physical and mental torture by the accused persons and that the deceased sister of the complainant told them of this torture several times. But the complainant and others repeatedly persuaded her to continue to live in the family of the accused persons. On account of the deceased being issueless, the husband d of his sister, used to often abuse and assault her and he also used to drop her for staying in the house of her parents. The brother-in-law of the deceased also subjected her to various types of physical and mental torture. The deceased also informed them that the said brother-in-law (Sasthi Bouri) proposed to the deceased that he wanted to have illicit physical relationship with her. On the morning of 17.03.1993, the complainant came to learn from a person that his sister is lying admitted in S.D. Hospital in grievously burnt condition. On receipt of this information, the complainant and others went to the hospital where the sister of the complainant told them that on the night of 16.03.1993, on account of the bad proposal for sex having made by the accused Sasthi Bouri and unable to bear the physical and mental torture any more at the hands of her husband and brother-in-law, she poured kerosene oil upon herself and put herself on fire. Thereafter on 19.03.93 at about 7.00 p.m. the sister of the complainant expired in the Govt. Hospital. The complainant firmly believed that her sister unable to bear such physical and mental torture, committed suicide by pouring kerosene oil on her body and then put herself on fire and she was got admitted in the Asansol Hospital under grievously injured condition where she expired on 29.03.93.The complainant further prayed that appropriate action be taken so that accused Kandan Bouri and Sasthi Bouri be punished. He further stated that delay in filing the FIR took place because his mental condition was not good. On the basis of the aforesaid F.I.R. Hirapur P.S. case No.21 of 93 u/Sec.498A/306 IPC was started. Subsequently, on 3.05.1993 on the basis of the prayer of the I.O. Mr. G.P. Roy, S.I. of Police, allegations for the offence u/Sec.302 IPC was added against the accused Sasthi Bouri in the light of U.D. Case No.99/93 dated 30.11.93 and the dying declaration of the deceased. The I.O. after completion of investigation submitted a Charge-Sheet No.59/93 dated 30.11.93 dated u/Secs.498A/302/34 IPC against the accused Shasthi Bouri and Kandan Boujri. Ld. S.D.J.M. Asansol on5.01.1995 committed this case to Sessions Court, Asansol. The case was then transferred to the Court of ld. ADJ, 2nd Court, at Asansol vide ld. District Judge’s order No.139(g) dated 11.7.2991. Subsequently, the case was transferred to this Court on 07.08.2001 as per District Judge’s Order No.161(g) dated 03.08.01. Both the accused persons were then absconding. After issuance of W.A. and subsequently W.P.A. against both the accused the case against both the accused persons was filed on 18..02.2003 and D.G. Police was informed by this Court regarding negligence on the part of the Police. Subsequently, on 06.03.2003, the accused Sasthi Bouri was brought under arrest before this Court. On 8.04.2003 a Charge u/Secs.498A/302 IPC was framed against the accused, who pleaded not guilty to the charge and he claimed to be tried. The accused did not file any W.S. as envisaged u/Sec.233(2) of the Cr.P.C. nor adduced any evidence in his defence.
POINTS FOR DETERMINATION
1. Did the accused subject the deceased Archana Bouri to any physical and or mental torture during the time, period and place as alleged?
2. Did the accused on 16.03.1993 pour kerosene oil on the body of deceased and then put her on fire at the time and place as alleged?
3. Did the deceased succumb to her injuries on 29.03.1993 at the S.D. Hospital, Asansol as a result of the act dated 16.03.93 of the accused as alleged?
4. Is the accused guilty of having committed offences u/Secs. 498A/302 IPC or any one or more of the aforesaid offences or entitled to the benefit of doubt, if any?
DECISION WITH REASONS.
Points Nos. 1 to 4:- All these four points are taken up together for adjudication for the sake of convenience, continuity and brevity in discussions. The prosecution examined 15 witnesses and proved six documents in support of their case as per list.
P.W.1 (Durlav Bourti) – the complainant -, P.W.-2 (Dhiren Bauri ) – the sister of the deceased, P.LW. -4 ( Rana Bauri ), P.W.5 – Rajesh Bouri, P.W.-6 (Binu @ Binod Bouri), P.W.-7 (Gati Bouri), P.W.-8 (Sukhdev Bauri) did not say anything incriminating against the accused and strangely enough, the prosecution did not even declare any of these witnesses hostile even though, these witnesses turned prosecution case topsy-turvy.
P.W.-3 (Dhiren Bouri) went to the extent of providing an alibi to the accused Sasthi Bouri by saying, "One video show was going on in my house and at that time Ananda Bouri and Sasthi Bauri were in my house and at that time one boy came and informed us that Archana has caught fire." Yet this witness was not declared hostile by the prosecution. With the prosecution in the hands of such personalities, criminal enterprise need not fear the law of the land. Hon’ble SC. In State of West Bengal v. Mir Mohammad Omar, AIR 2000 SC 2988 opined, "………..In our perception, it is almost impossible to come across a single case wherein the investigation was conducted completely flawless or absolutely foolproof. The function of the Criminal Courts should not be wasted in picking out lapses in investigation and by expressing unsavory criticism against officers. If offenders are acquitted only on account of flaws or defects in investigation, the cause of criminal justice becomes the victim. Effort should be made by the Courts to see that criminal justice is salvaged despite such defects in investigation…." This principle in my opinion should also be applied mutatis ;mutandis even in the case of defective prosecution as well. P.W.9 (Kali Pada Das ) is a formal witness who produced the dead body of the deceased Archana Bauri before the doctor who conducted post-mortem thereon.
PW-12 (Dr. S.K. Rudra) is the doctor under whom the patient was admitted on 16-03-93 at 11.25 P.M. by the emergency doctor and the Dr. S.K. Rudra attended the patient on 17-03-93. He conducted Post-Mortem over the dead body of the deceased Archana Bauri and he in his evidence stated, "The post-mortem Report was prepared by me on 30-03-1993. The dead body was brought by Constable 1364 Kalipada Das and on examination I found R.M. Positive, average built, mouth and eyes closed. Her whole body was burnt 90% from face to leg except sole of foot. The cause of death kept pending receipt of report of Chemical analysis of viscera. Subsequently, as per query of the I.O. Gurupada Roy S.I. of Chhotodigari out post under Harapur P.S. I opined that the burnt injury caused to the deceased Archana Bouri was sufficient to cause death. This is the said opinion given by me (Marked Ext.4 on identification)."
From his evidence we find that the deceased suffered 90% burn injuries covering whole of her body except sole of foot and that she died on account of burn injuries sustained by her.
P.W.-13 (Smt. Aloka Chakraborty ) is the staff nurse who stated that she did not remember what happened on 26-03-1993. The prosecution did not, as usual, declare even this witness hostile.
P.S.14 (Dulal Upadhyay ) is the scribe who wrote the F.I.R (Ext.5) as per statement made to him by the complainant.
P.S.15 (Dr. Utpal Nandi) is the doctor in whose presence, S.I. Mihir Kumar Bannerjea recorded the dying declaration of the deceased on 26-03-1993. P.W.-15 (Dr. Utpal Nandi) ins his evidence stated, "At present, I am posted at Asansol S.D. Hospital as a Medical Officer. On 26-03-1993 also I was holding the same post at the same place. On 26-03-1993, I recorded the dying declaration of the deceased Archana Bauri. The dying declaration of the deceased was recorded in my presence by S.I. Mihir Kr. Bannerjee and this is the said dying declaration recorded by him in my presence, and I signed the same as a witness. This is the said dying declaration recorded in my presence (Marked Ext.6 on identification). This note regarding the dying declaration made by the deceased with my signature on the bed head ticket, is made by me (Marked Ext.2/1 on identification). The 2 and 3 page of Ext. 2 is written in ;my handwriting (identifies)."
He also proved the dying declaration (Ext.6) made by the deceased
Smt. Archana Bauri and recorded by S.I. Mihir in his presence in Bengali. This dying declaration of the deceased recorded in Bengali when translated into English would read, "Knowing yourself to be the officer-in-charge of Asansol (South) P.S. and on your questioning, I am stating that my name is Archana Bauri w/o Kandan Bauri of village – Vidyanathpur, P.S. Hirapur. Last about 10 days ago since I an illiterate person, I shall not be able to tell the exact date, my husband had gone to the market to watch video, at that time, about mid of night when it may be 12.00 O’ clock in the night, my brother-in-law Sasthi Bauri enterede my room to have sex with me. But when I did not agree to satisfy his desire, he told me that I have been creating problems for his elder brother and so he shall now put me on fire. Saying so, he forcibly poured on me kerosene oil lying in the room and then he put me on fire. I shouted for help by shouting, "Bachao, Bachao", but none came to my rescue. Thereafter, I, some-how came out and threw myself in the water of the Pond. Seeing this, Benu Bauri and Lakhi Bauri came and they got me admitted in the hospital. Now while speaking, I am experiencing pain. I am not able to say anything more than this now."
On the same date at about 10-15 A.M. Dr. Utpal Nandi in the B.H.T. (Bed Head Ticket) of the patient Smt. Archana Bauri made a note (Ext.2’1) to the effect, "Pt. (patient) conscious, G.C. (General Condition) poor. Patient said in presence of on duty Sister and Special Aya that she had been burnt by her brother-in-law in absence of her husband as because she prevented him on doing rape." Sd/- Utpal Nandi. Below his signature, he put the date 26.3.93 and noted the time 10-15 A.M. on 26-03-1993 while the dying declaration was recorded at 12.30 hours on 26-03-1993. Ext.2/1 (Note regarding the dying declaration) and Ext.6 – the dying declaration are in harmony with each other. In his cross-examination, Dr. Utpal Nandi (P.W.-15) revealed, " I informed the police through Superintendent that the patient wanted to make a dying declaration and as such any Executive Magistrate may be requested accordingly."
As per Ext.6 Kalo Moni Bauri (P.W.-11) was present when the dying declaration was recorded. But the prosecution did not care to put any question to her in this regard. She in her cross-examination stated, "The deceased Archana told me something at the hospital which I now remember." Justice Mathew Arnold in R.V. Woodcock, (1789) 1 – leach 500 made the classic observation, "The general principle on which this species of evidence is admitted is that they are declarations made extremity, when the party is at the point of death, and when every hope of this world is gone, when every motive to falsehood is silenced and the mind is induced by the most powerful consideration to speak the truth; situation so solemn and so awful is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a Court of Justice."
In this regard, I would like to add that women in India are generally of deeply religious nature, particularly the illiterates amongst them and they would not like to meet their creator with falsehood planted on their lips after becoming fully aware that their death is inevitable in the near future. If at all they lie under such circumstances, such lie would be to forgive the wrong doer rather than to falsely implicate an innocent person.
Apparently, there is a minor discrepancy in the dying declaration regarding the time of incident which as per Ext.6 is approximately 12’ O clock in the night while as per the Ext.2 (B.H.T.) she was admitted in the Hospital at about 11.25 p.m. in the night on 16-03-1993. But keeping in view the fact that the deceased was illiterate, she was a victim of a horrible incident and it was night when assessment of time even by a literate person becomes difficult without the help of a watch, I do not attach any importance to such discrepancy when the factum of the victim getting seriously burnt is established beyond reasonable doubts from the e3videnc e on record. It is presumed that in order to save life, the victim must have been removed to the Hospital as early as possible. As such, a maximum of one hour may be allowed for this purpose. In other words, the incident must have taken place around 10.00 P.M. on the night of 16-03-1993. Hon’ble S.C. in Sheo Darshan v. State, AIR 1971 SC 1794 observed that evidence of village folk cannot be taken with exactitude regarding time and distance.
I am aware that Hon’b le S.C. in Dalip Singh v. State of Punjab, AIR 1979 discouraged recording of dying declarations by the I.O. yet conceded that a dying declaration recorded by a Police Officer is admissible u’Sec.32 of the Indian Evidence Act. In this case dying declaration was recorded by S.I. Mihir Kr. Bannerjee of Asansol South P.S. when investigation did not even begin as the F.I.R. was lodged on 31.03.1993. Since he was neither the I.O. nor belonged to the Hirapur P.S. where the F.I.R. was lodged and investigation of the case was done, it can safely be assumed that he had no personal interest in the success of the prosecution case. The facts and circumstances of this case are akin to the facts and circumstances of Jaswant Singh v. State (Delhi Administration) AIR 1979 SC 190 wherein the Hon’ble Supreme Court observed, "It is also true that the dying declaration which is not recorded by a magistr4ate has to be scrutinized closely, but it is well settled that if the Court is satisfied on a close scrutiny of the dying declaration that it is truthful, it is open to the Court to convict the accused on its basis without any independent corroboration………… In the instant case on a careful consideration of evidence on record we are satisfied that the dying declaration, the genuineness of which is verified by Dr. Avtar Singh Gill, is truthful and convincing and it cannot be brushed aside merely on the ground that it was not recorded by a Magistrate when it is remembered that it was recorded by S.I. Din Dayal in the presence of the duty doctor Avtar Singh Gill at a time when the deceased was in great agony and the life in her was fast ebbing away."
In State of Maharashtra v. Mehtabi, (1998) 8 SCC 618, Hon’ble S.C. accepted a dying declaration recorded by a Head Constable. In Ashok Kumar v. State of Rajasthan, 1990 Cri.L.J. 2276, 2280 Hon’ble S.C. construed an entry in injury report that the injured was burned by her brother-in-law as dying declaration. In the light of the aforesaid decision, the note (Ext.2/1) regarding dying declaration of the deceased made by the doctor Utpal Nandi (PW.15) on 26-03-1993 at 10.15 A.M. can be construed as the first dying declaration made by the deceased to the doctor in the Hospital when neither the Police nor any other interested person was present except the sister on duty and the Special Aya. Now after having the fact that Ext.6 and Ext.2’1 depict the correct dying declarations made by the deceased, let us examine, if the deceased made the same truthfully or not. The following factors tend to indicate that the two dying declarations were made truthfully and without malice.
1) Any tutoring on the part of complainant and members of his family can be ruled out as because, the complainant himself was unaware of the fact that the deceased made any dying declaration on 26-03-1993 while he lodged the F.I.R. on 31.03-1993. It would be foolish to believe that having tutored the victim, he would lodge an F.I.R. narrating a different type of story on 31.03.1993.
2) The deceased, in spite of being grievously burnt, did not disclose the name of her brother-in-law for about 10 days after being admitted in the Hospital, presumably as because she was still hopeful of her full recovery and she and she did not want her married life to be destroyed by spilling the beans which would have surely led to at least the arrest of the brother of her husband. She decided to disclose full facets only when she was in real expectation of death. No doubt, she expired within three days of her making the dying declaration. In Medabai v. State 1992(2) Crimes 813 where the deceased made two dying declarations, in the first one she indicated she caught fire while cooking accidentally and in the 2nd one she implicated her ;mother-in-law stating that she set her ablaze in presence of her husband, Hon’ble S.C. accepted the 2nd one and observed that she is not to be blamed for her inability to speak out the truth in the immediate presence of her persecutor as she must have thought that if she told the truth and survived, the consequences would be disastrous.
3) Theory of accident can not survive as because late hours in the night when the incident took place is generally not cooking time in the villages of India.
4) The accused as per Ext.6 and Ext.2/1 tried to rape the deceased, but did not succeed in his attempt. A brave woman who succeeded in thwarting an attempt to rape by the accused, would be the last person to commit suicide after such a success.
The accused on the other hand, in order to cover up his misdeed from his elder brother, society and to keep his pseudo image and respect intact, and may be also on account of his being enraged at the failure of his abortive attempt to rape, had sufficient motive to wipe out the only evidence oft his misdeed by murdering the victim.
5) The incident narrated by the deceased in her dying declaration appears to be quite probable, trustworthy, reliable and natural and it does not contain any inherent infirmity. Victims of sexual assault are normally targeted when they are most vulnerable, helpless and alone. With her husband away (watching video) and the victim alone and helpless , the accused had a golden opportunity to execute his plan to satisfy his lust. He allowed full play to his animal instinct, the details whereof need not now be repeated again.
6) In case the accused was innocent, the victim had no earthly reason to falsely implicate the accused in her two dying declarations – the solemn nature whereof can not be lightly brushed aside.
Under such circumstances, I have nothing to doubt the veracity and truthfulness of the two dying declarations.
There being no evidence of any torture within the meaning of Sec.498A IPC against the accused, I have no hesitation in holding that the accused is entitled to an acquittal for the offence u/Sec.498A I.P.C.
Now let me examine the different aspects of the written arguments on the questions of fact and law submitted by the Ld. Advocate for the accused. Since I have already held there is no evidence regarding torture, I shall skip over all defence arguments advanced in connection with absence of torture.
As such, let us examine if the alibi provided by prosecution witness P.W.-3 (Dhiren Bauri) is trustworthy or not. He in his evidence stated, "One video show was going on in my house and at that time and at that time Anand Bauri and Sasthi Bauri were in my house and at that time one boy came and informed us that Archana has caught fire." In his cross-examination he stated, "On arrival we saw Archana lying in burnt condition in the room." There is no evidence to suggest that the room in which the victim was found was locked from inside or from outside. The same was in all probability open as P.W.-3 did not say they entered the room by breaking open the door of the room. The first instinct of any victim – whose body is on fire and when the intense heat starts roasting her skin and flesh coupled with intense pain produced by the burn injuries so caused – would be to run towards the nearest source of water to douse her flames. So, it is most likely that under such circumstances she would run towards water as indicated by Ext.6 rather than remain inactive and continue burning in her own room.
Evidently, this witness is lying to screen the real culprit. The other equally strong grounds to disbelieve his evidence are as follows:-
1) He did not disclose the name of the boy who informed them regarding the incident.
2) Event the accused himself in his 313 Cr.P.C. Statement, when the incriminating contents of the dying declaration were put to the accused, nowhere stated or took the alibi that at the relevant time he was watching video at the house of P.W.-3 (Dhiren Bauri).
I am not impressed by the words denizen used by the Ld. Advocate for the accused in the written argument for P.W.-3 (Dhiren Bauri). Hon’ble S.C. in Kishan Chand v. State of Rajasthan, S.C. 1511 opined, "Truth is neither the monopoly nor the preserve of the affluent or of highly placed persons. In a country where renunciation is worshipped and the grandeur and wild play of wealth frowned upon, it would be the travesty of truth if persons coming from humble origin and belonging to office wise, wealth wise lower strata of society are to be disbelieved or rejected as unworthy of belief solely on the ground of their humble position in society."
P,W,-4 (Rama Bauri) and P.W.-5 (Rajesh Bauri) are not eyewitnesses to the occurrence and as such they cannot be believed when they say that the clothes of the deceased caught fire while she was cooking. Ld. Advocate for the accused at page 3 of his written arguments regarding the evidence of PW-12 (Dr. Shyamal Kr. Rudra) submitted, "His evidence is very very important because he deposed in his cross-examination that at the time of admission, Archana was conscious and co-operating and during her first version to doctor she told that she caught fire while cooking in the evening. It is always a sound principle that first version is the best version as there is always a very remote scope of tutoring or telling anything false when some body gives his/her first version to anybody and this version to the attending doctor directly contradicts the so called dying declaration and makes the purported dying declaration false, unbelievable and unreliable."
This is undoubtedly a distorted version of facts. According to P.W.-12 (Dr. S.K. Rudra), Dr. Biswanath Bannerjea admitted the patient on 16.03-93 at about 11.25 P.M. while he examined the patient only on 17.03-1993 at about 12.20 A.M. So, he is ;not competent to say who narrated the history of assault to Dr. Biswanath Bannerjea at the time of admission i.e. the victim or the absconding addused Kandan Bauri whose L.T.I. appears pm Ext.2 with date 16.03.93 below his L.T.I. Besides, even assuming that the victim made any such statement, then also such a statement would not demolish dying declaration of the victim made subsequently in view of Medabai v. The State, 1992(2) Crimes 813 cited earlier.
Dr. Utpal Nandi (PW-15) did not blow hot and cold as alleged. He recorded dyihng declaration of the deceased first Ext.2/1 in note form and thereafter he was also present when S.I. MIHIR Kr. Bannerjea recorded the dying declaration of the deceased at 12.30 hours in the Hospital.
Ld. Advocate for the accused cited a ruling of Hon’ble S.C. in Cheropalli vs. State of A.P. 2003 Cr.L.R.(SC) 313 and submitted that a dying declaration not recorded by any Magistrate and in absence of any corroboration can not be accepted
Facts and circumstances of the aforesaid case vary considerably from the facts and circumstances of this case as follows:-
a) In the cited case the dying declaration was dated subsequent to the date while in this case both the dying declarations were made when the victim was alive on 26.03.93.
b) In the cited case, the incident took place in the open and there were several eye witnesses none of whom including the relatives of the deceased supported the deceased. In this case there is ;no eye witness to occurrence and as such question of corroborative evidence does not arise.
c) In the cited case the dying declaration recorded by the doctor was disbelieved as because he in his evidence stated that at that time he was attending to other patients also. No such flaw in this case regarding presence of the doctor at the time of recording of the dying declaration has been pointed out.
In other words, the ratio of the aforesaid ruling cannot be applied to the facts and circumstances of this case. Besides, Hon’ble Supreme Court in Dalbir Singh v. State of Punjab, AIR 1987 SC 1328 observed that no hard and fast rule can be laid down about appreciation of evidence as a question of fact in each case has to be decided on the facts as they stand in that particular case.
Non-examination of S.I. Mihir Kumar Bannerjea is not prejudicial to the defence as because Dr. Utpal Nandi (PW-15) who recorded Firsts dying declaration in note form (Ext.2/1) and was present during recording of the 2nd dying declaration by Mihir Kr. Bannerjea (Ext.6) has been examined by the prosecution. Contrary to the allegations made in the argument, the place and time of recording dying declaration is mentioned in Ext.6. The time 12.30 hours and the place S.D. Hospital is noted on 4th line of Ext.6.
The defence also cited 1998 Cri.L.J. 287 of Rajasthan H.C. and a Ruling of Hon’ble S.C. as reported in 1997 Cri.L.J. and submitted that in absence of a medical certificate to show that the deceased was medically fit to make statement, the dying declaration cannot be accepted. But, unfortunately, for the derfence, in view of a recent larger bench ruling of Hon’ble S.C. in Laxman v. State of Maharashtra (J.T. 2002 (5) SC 313 ) and Ruling in AIR 2003 S.C. 209 (Para 8) the ruling cited by the defence is now no longer good law. Besides, in this case, mental fitness of the deceased was not even challenged. The defence only made a suggestion regarding physical fitness of the deceased to P.W.-15. Physical fitness is quite different from mental fitness. A person in expectation f death can never be physically fit, though he may be mentally fit and alert.
When a patient suffers 90% burn injuries, no significance can be attached to non obtaining of her L.T.I. on the dying declaration particularly when the victim is illiterate.
After weighing all the pros and cons, I conclude
i. That there is no evidence to suggest that the accused subjected the deceased to any physical and mental torture prior to 167-03-1993 within the meaning of Sec.498A I.P.C.
ii. That it was the accused Sasthi Bauri who on 16-03-1993 poured kerosene oil on the body of the deceased and put her on fire.
iii. That the deceased succumbed to such burn injuries on 29-03-93.
As such while the accused deserves an acquittal from the offence u/Sec.498A I.P.C., there are enough ground to hold him guilty and convict him for the offence u/Sec.302 IPC As such, all the four points are answered accordingly.
But, before parting with the judgement, I would like to enumerate below a few of the unusual practices that came to light with the hope that steps may be taken by the appropriate authorities to stem the rot:-
a) The victim was admitted in a Govt. Hospital on 16.03.93, died on 29.03-93, yet no criminal case was started till 31.3.93.
b) In spite of the existence of the dying declaration of the deceased as earlier as 26.03.93 the arrest and production of the accused persons in Court took place on 5.4.93 u/Secs. 498A/306 I.P.C., the I.O. prayed for adding Sec.302 I.P.C. against the accused Sasthi Bauri by his letter dt. 30-04-93, only when both the accused persons were released on bail on 16-04-93 by the ld. S.D.J.M. Asansol.
c) Even the Police witnesses namely S.I. Mihir Bannerjea, ASI Samir Chakraborty, SI. S. Bhattacharya and the I.O. SI. G.P. Roy who are witness Nos. 13, 14, 21, and 22 did not appear in Court to depose though copies of Order No.11 dated 16-06-03 and No.17 dated 23-07-2003 were sent to O.C. Hirapur P.S., Additional S.P., Asansol and also to the Director General of Police as well requesting necessary action in terms of the Ruling of Hon’ble S.C. as reported in 2002 Cri.L.J. 568. Copy of order No.17 dated 23-07-2003 was also sent to the Chief Secretary to the Government of West Bengal, but without any tangible result.
d) The prosecution did not file any requisites for issuance of summons upon witnesses as required u/Rule 96 of the Criminal Rules and Orders Vol. I even though it is the duty of the Prosecution to produce witnesses and evidence as envisaged u/Sec.230 and 231(1) of the Cr.P.C.
Now, in view of the decision of this Court, it is
O R D E R E D
that the accused Sasthi Bauri is found guilty and convicted for the offence u/Sec.302 I.P.C. but he is acquitted from the offence u.Sec. 498A I.P.C. Fix 29-08-03 his Examination u/Sec.235(2) of the Cr.P.C. on the question of sentence.
Additional Sessions Judge,
Fast Track Court, 1st Court, Asansol.
29-08-2003 Examination of the convict u/Sec.235(2) of the Cr.P.C. on the question of sentence.:- The convict is examined u/Sec.235(2) of the Cr.P.C. and on being examined, he submits that he and his elder brother Kandan Bauri are separate in mess though they lived in the same house. He submits that he goes out for work in the morning and returns late in the night everyday and he has a wife and he has 2 sons aged about 5 years and 3 years. He submits that he is innocent. Ld. APP on being asked submits that at least the minimum punishment must be imposed on the convict. Heard, considered. Keeping in view the criminal liability of the accused on the one hand and his young age on the other hand, the convict in my opinion deserves only imprisonment for life. It is true that the convict committed a heinous and dastardly crime on a helpless and defenseless woman, yet from the surrounding circumstances, it is clear that there is a complete absence of any pre-planning and the office it appears was committed on the spur of the moment. There is no evidence of torture of the victim for any dowry. Besides, the convict being of young age, there is good scope for his reform. The offence does not, in my opinion, falls within the category of the rarest of the rare cases. As such, in my opinion, a sentence for imprisonment for life with fine of Rs.5,000/- i.d. additional S.I. for 5 months would suffice the ends of justice. The capital punishment of death, I feel, would be too harsh in this case. Besides, it is not the severity of the punishment, but the surety of the punishment that ensures decline in criminal enterprise. Hence, it is
O R D E R E D
that the accused Sasthi Bauri who was found guilty and convicted for the offence u/Sec. 302 I.P.C. on 26-08-2003 is hereby sentenced to suffer rigorous imprisonment for life and to pay a fine of Rs.5,000/- i.d. to suffer additional S.I. for 5 months for the aforesaid offence. The fine amount, if realized, shall the deposited in the account of the District Legal Service Authority u/Sec.17(i)© pf the Legal Service Authorities Act, 1987. The cost of Rs.1,000/- imposed on the State vide this Court’s order No.17 dt. 23.07.03 shall be set off from the aforesaid amount of fine. There shall not be any order regarding disposal of seized alamats, if any, at this stage as another accused Kandan Bauri is still absconding. Issue warrant of imprisonment accordingly.
Let a certified copy of this Judgement be given free of costs to the convict at once. Request Copying Department accordingly.
Let a copy of this Judgement be also sent to the District Magistrate, Burdwan u/Sec.365 of the Cr.P.C.
Sd/- (Harjinder Singh)
Additional Sessions Judge,
Fast Track Court, 1st Court, Asansol.