Sk. Firoz and Others vs The State of West Bengal

Gitesh Ranjan Bhattacharjee, J.—By his judgement passed in ST Case No. 1(8) 1994 the learned Additional Sessions Judge. 5th Court. Alipore (South 24-Parganas) convicted the three accused persons to death for their conviction under Sections 302/34 I.P.C. and also to imprisonment for life for their conviction u/s 376 I.P.C. as well as to R.I. for seven years and fine for their conviction under Sections 201/34 I.P.C. The learned trial court has referred the case to this Court u/s 366 Cr.P.C. for consideration of confirmation of the death sentence imposed on the accused persons for their conviction under Sections 302/34 I.P.C. Two separate appeals by the accused persons also have been preferred against the Judgement and orders of conviction and sentence passed by the learned trial court. Both these appeals have been heard along with the death reference case and all these three matters are being disposed off by this judgement. The three accused persons Sk. Firoz, Sk. Chandi Munna and Sk. Bablu who are the three appellants in these appeals were charged for rape of a minor girl Parveen aged about nine years and for murdering her thereafter and also for causing disappearance of the evidence of such offences with the intention of screening the offenders from legal punishment. The prosecution case in short is that in the night of 6th June. 1993 the said minor girl Parveen was found missing and it was only in the afternoon of 7th June. 1993 that her dead body was discovered in a brick built pit. P.W. 3 Sabir Ali in the maternal grand-father of the unfortunate victim Parveen. He is a rickshaw puller by profession and is a resident of 11A/1. Tiljala Shibtala Lane. Cal. 33 under Karaya P.S. Ext. 2/1 is a site plan of that locality prepared by the official plan maker. Parveen''s parents live at Palm Avenue which is about half an hour''s walking distance from Sabir Ali''s house as we get from the evidence of Sabir Ali. Parveen mostly used to live with her grand-father Sabir Ali but she was in the habit of frequently visiting her parent''s place alone. On 6.6.93, the ill-fated date also Parveen visited her father''s house at about 10 a.m. and returned to the house of her grand-father Sabir Ali at about 4.30 p.m. Sabir Ali was sitting on a cot in front of his house at that tine and Parveen started playing there and remained there upto about 7 p.m. and then as it started raining both Sabir Ali and Parveen retired inside their room but after sometime Parveen went to the room of their next-door neighbour Sk. Felu to witness T.V. programmes. According to the evidence of Sabir Ali as Parveen did not return till 9.30 p.m. he visited the room of Sk. Felu in search of Parveen and learnt from Sk. Felu that Parveen had already left their room. Sk. Felu lives there with his family and Sahida Bibi is his wife. Sabir Ali, as he says, then searched for his grand-daughter Parveen here and there in that locality upto about 10.30 p.m. and as he could not trace her out he thought that she must have gone to her father''s house at Palm Avenue. However the next morning, that is, in the morning of 7th June, 1903 Sabir Ali went to the house of his son-in-law Md. Salim at Palm Avenue at about 10 a.m. in search of Parveen and come to learn from his daughter Ranu that Parveen had not visited their house. His son-in-law Md. Salim was however not present in, his house at that time, Sabir Ali then returned to his house and, according to his evidence, be along with this sons and the boys of their Bustee searched for Parveen but could not trace her out and at about 1.30 p.m. his son-in-law Salim came and then Sabir Ali sent Salim and his (Sabir Ali''s) son Imam Ali to the police station for lodging a missing diary in respect of Parveen. Ext. 8 is the missing diary being G.D. entry No. 530 dated 7.6.93 recorded at the Karaya P.S. at 2.28 p.m. at the instance of the said lmam Ali, the son of Sabir Ali. At about 4 p.m. Shanku Pandey and Sk. Raju, who are the boys of that locality, while playing kites climbed up to the pantile roof of premises No. 3. Tiljala Shibtata lane in search of their kite and at that time from there they noticed the body of Parveen lying inside a pit adjacent to that room and then they reported the fact to Sabir Ali and others and thereafter Sabir Ali and his wife rushed to that place and found the dead body of Parveen lying there. When Sabir Ali went there he saw that the body of Parveen was lying inside a brick-built pit and there was no wearing apparel on her dead body. He also found a piece of pitch board inside that pit The measurement of the pitch board as given by Sabir Ali is approximately 3" x 21/2" Parveen had discharged stool also at that place and there were blood stains inside the pit. Her slipper for the left leg was also found lying near that place. It appears that in the meantime at about 5.35 p.m. a telephonic information was received at the Karaya P.S. from an unknown person about the presence of the dead body of a minor girl in the brick-walled pit having its top open at 3. Tiljala Shibtala Lane. That information was recorded to the G.D. Entry No. 538 Ext. 11. After receiving that information police also arrived at the spot at about 6 p.m. The spot where the dead body of Parveen was found was a brick built pit at 3. Tiljala Shibtala Lane. The size of that pit which has been described as a gap by the official plan maker is 1.4 mt. x 0.9 mt. That gap or pit is surrounded by stacked bricks on three sides and by the wall of room on the western side. The landlady of the rooms there at 3. Tiljala Shibtala lane where that pit is situated is one Motijan Bibi. From the plan maker we got that the height of the brick pile there around the pit is waist-high. Sabir Ali however gives the depth of the said brick-built pit as chest-high. Police on arrival at the spot at about 6 p.m. on 7.6.93 held inquest on dead body of Parveen which was found in naked condition and also seized certain articles from the spot, such as, a masonite board measuring about 2 x 31/2 x 1/4". blood loose stool, one pink coloured plastic lady''s chappal of left foot under seizure list ext. 4/2. The body of Parveen was sent far port-mortem examination. The statement of Sabir Ali was also recorded at the spot and later on the basis of such recorded statement of Sabir Ali formal FIR was recorded at the P.S. The recorded statement of Sabir Ali has been marked as ext. 12 and the formal FIR marked as ext 13 Certain witnesses were also examined on that very day. In his recorded statement which was treated as FIR Sabir Ali stated that on the previous day, that is, on 6.6.93 at about 10 O''clock Parveen went to her mother''s house and came back at about 4 p.m. and later Parveen went to the adjacent room to watch T.V. and at that time it was raining cats and dogs and as Parveen was absent for a long while he (Sabir) searched for her in the neighborhood but she was not found anywhere and they thought that she had gone to her mother''s house as she used to do. It is also stated by Sabir Ali in the FIR that on 7.6.93 at about 10 a.m. he went to his daughter''s house and came to know that Parveen did not come there and he became extremely worried and came back to his house and asked his sons to make vigorous search and later his son-in-law Salim came to his house and then his son Imam and son-in-law went to Karaya P.S. and lodged a diary staling that Parveen had been missing since last night. It is further stated in the FIR that at about 4/4.30 p.m. two children of the locality Sambhu and Raju came to him and stated that while searching for the kite they found that the dead body of Parveen was lying at a place surrounded by walls situated at 3. Tiljala Shibtala lane and immediately he along with his wife ran to that place and found that the dead body of Parveen was lying with her neck bent downwards and the rose coloured plastic sandal of Parveen''s left foot was lying there and on seeing that sight he and his wife kept on weeping and the people of the locality began to assemble and in the meantime police from Karaya P.S. came by the spot. In the concluding part of the FIR it is stated by Sabir that he apprehends that having outraged Parveen''s modesty somebody had murdered her and tried to destroy the evidence by hiding her dead body at that place. It may be noticed that the FIR which is a statement of Sabir Ali, the grand-father of the victim Parveen recorded soon after the discovery of dead body of Parveen in the afternoon of the 7th June, 1993 is a fairly king one containing description of certain details of events occurring since the morning of the previous day. Apprehension was also explicitly expressed in the FIR that somebody had murdered Parveen after outraging her modesty and tried to destroy the evidence. It has to be noticed also that no specific name of any probable (sic) has been mentioned in the FIR even by way of suspicion. On 8.6.93 at about 11.15/11.15 a.m. police seized one orange coloured frock from the place beside the brick wall at 3, Tiljala Shibtala Lane on the eastern side of the Bustee room of Motijan Bibi (landlady). This frock was identified as the frock which the victim Parveen was wearing when she was last seen in the previous night. The single sandal which was seized on the earlier day from the same place was also identified as one of the pair of sandals which Parveen was wearing that night. It may be noted here that the other sandal however was not found either at the spot or elsewhere. Some witnesses were also examined by the police on 8.6.93 and the two accused Sk. Firoz and Chandi Munna were arrested by the police from that locality on 9.6.93 at 10.30 p.m.

Both the said two accused were medically examined by Dr. D.K. Basu on 11.6.93. On examination the doctor found the following injuries on the person of the accused Sk. Firoz. viz. ten transverse scratch injuries over abdomen, parallel to one another, the length of each injury being 10", one lacerated wound 1" x 1/2" over left elbow, one lacerated would 1/2" x 1/2" x skin deep-right side of chest wall. A similar injury on the left side of the chest wall also one lacerated would-fresh - 3" x 1/2" x skin deep over back of left thigh, two scratching wounds over back of right thigh - 10" long each. On examination the the doctor also found him potent. The doctor opines that the scratching wounds referred to above might have been caused by human nails and the lacerated wounds by coming in contact with hard and rough substances like bricks. The injuries, according to him, were not older than one week when he examined the said accused. The doctor also found the following injuries on the person of the accused Chandi Munna @ Munna viz. one abrasion 1/2" x 1/2" skin deep on right arm, one abrasion 1/2" x 1/2" on right scapula, bruise 5" x 6" over right buttock, bruise 4" x 3" over left buttock, one scratching wound over left hip region. He was also found potent. According to the opinion of the doctor the scratching wounds might have been caused by human nails and the abrasions and bruises by contact with hard and rough surface of bricks, and the bruises might have been sustained by fall on some hard substance. The age of the injuries, according to the doctor, was not more that one week from the date of examination of the accused.

It is the prosecution case that on 22.6.93. pursuant to the statements of the accused Firoz and Chandi Munna the police recovered in presence of witnesses certain wearing apparels which the respective accused persons were wearing in night of the occurrence. The wearing apparels of Sk. Firoz were recovered and seized from his residence at 11/C. Tiljala Shibtala lane and the wearing apparel of the accused Chandi Munna was recovered and seized from premises No. 3 Tiljala Shibtala Lane where his father-in-law used to live. On 9.7.93 police arrested Sk. Bablu at about 12.20 p.m. from 11, Tiljala Shibtala Lane. On 27.7.93 Dr. P.B. Das examined the accused Sk. Bablu who was found to be potent, there was evidence of scar over root of glans penis on the dorsal of the foreskin. In his cross-examination the doctor says that the said scar was of old infection or injury but could not ascertain its age. This doctor namely. Dr. P.B. Das also held post-mortem examination on the dead body of Parveen on 8.6.93. He found a large number of abrasions and bruises over different parts of the dead body. The total number of injuries found by him is 23 and doctor has described all these injuries specifically in his evidence. The abrasions were found on various parts of the body, such as, leg. right patela, left forearm, lumber region, back, left palm, right thigh, both lips, right cheek, both heels, neck, Crescentic abrasions were found on the neck in mandible region. Bruises were found on different parts such as scapular region, forehead, lumber region, neck, both labia, occipital region, the doctor also found rupture of the lower part of the vagina with evidence of clotted dried up blood over the area and also inside the vaginal canal and hymen was found grossly lacerated with evidence of clotted blood. In the opinion of the autopsy surgeon death occurred due to the effect of the throttling, antemortem and homicidal in nature. The post-mortem doctor also found one polythene pack containing stones, mud etc. put inside the mouth of the dead body over trachea. The doctor also says that the brutal atrocity meted out to the minor girl of nine years of age was sufficient in the ordinary course of nature to cause her death and in his opinion the way in which the minor girl was ravished was itself sufficient in the ordinary course of nature to cause her death. The doctor further says that the polythene pack placed inside the mouth over trachea coupled with throttling was also sufficient in the ordinary course of nature to cause her death. Considering the number as well as the nature of injuries on and in the vicinity of the private parts of the minor girl the doctor is also of the opinion that she was ravished by more than one person. According to the opinion of the doctor the abrasions which he found on the dead body might have been caused by coming in contact with or by being dragged over some hard and rough surface e.g., bricks etc. and the crescentic abrasions were all nail marks and these injuries were caused By manual force and all the injuries on the neck of the dead body ware caused by manual force. The evidence of the post-mortem fact or itself depicts a horrible picture regarding the commission of brutal and inhuman rape upon a hapless minor girl of nine years of age by a number of beasts in human form and regarding commission of murder of the girl by a dastardly process of throttling. Language is not adequate to give vent to our feelings of anguish and affliction for the brutal crime perpetrated on a helpless girl of nine years. But it is one thing to be shocked and outraged by the enormity of the offence resultantly generating an intense urge to see that the culprits are not only punished but punished in an exemplary way, and it is a different thing to identify the culprits beyond reasonable doubt by exercise of the judicial process of scrutiny of evidence and circumspection. We are now precisely faced with the question whether the prosecution have been able to establish the charge against the accused persons beyond reasonable doubt. Let us proceed to examine the evidence adduced by the prosecution regarding the involvement of the accused persons in the commission of this dastandly crime.

Prosecution have examined two witnesses as eye-witnesses to the commission of rape by the accused persons on the victim Parveen. These two witnesses are Sk. Panchu and Asraf (sic)ossain, Sk. Panchu is also a resident of 11A/A, Tiljala Shibtala lane and a neighbour of Sabir Ali, the grand-father of Parveen. According to his evidence on 6.6.93 he returned home from the place of work at about 8/8.30 p.m. and while so returning he saw the accused Firoz and Chandi Munna seated in the sweet-meat ship of Sk. Fakiruddin in their locality. It may be mentioned here that this Fakiruddin has not been examined. Panchu wants to say that at about 11 p.m. on 6.6.93 he came out of his house after finishing his meal and at that time he saw that the accused Firoz was taking away Parveen on his lap towards Palm Avenue along Tiljala Shibtala lane and out of suspicion he stood there and saw that the accused Firoz took a left turn and entered the premises No. 3 Tiljala Shibtala lane carrying Parveen on his lap. He wants to say that at that time he saw that accused Sk. Bablu and Chandi Munna were sitting near the Shiva Temple of their locality and he went upto the dustbin which was there near the premises No. 11A. Tiljala Shibtala Lane and took position there by concealing himself and from that place he noticed that all three accused persons, that is, the accused Sk. Firoz, Sk. Bablu and Chandi Munna committed rape on Parveen. He further says that Parveen was a minor girl and he did not find her resisting the acts of the accused persons. According to his evidence, by that time Asraf also had arrived there at the place where he was waiting and Asraf also noticed the incident standing near him and asked him to keep mum as the accused persons were of dangerous character. Sk. Panchu says that out of fear he kept mum even after the incident was ever. He further says that after 3/4 minutes Asraf and he left that place and out of fear he did not disclose the incident to anybody else till 7.6.93 and that on 8.6.93 he informed Sabir Ali of the aforesaid incident and also reported the incident to. Sk. Abdullah and Sk. Sona. According to his evidence police visited their locality on 8.6.93 at about 5 p.m. and recorded his statement. As an epilogue of his examination-in-chief Sk. Panchu adds that the accused Gia was also present with these three accused persons at the place of occurrence and he saw Gia proceeding towards the place of occurrence behind the room of Motijan Bibi at premises No. 3, Tiljala Shibtala Lane coming from the side of Shiba temple. So he does not involve the said Gia with the commission of rape or of any offence. It may be mentioned here that Gia was not on trial and in fact he is no more alive. In his cross-examination he says that he was in good terms with his neighbours including Sabir Ali. We must say that the conduct of Sk. Panchu requires one to be cautious and circumspect in the matter of placing credence on his evidence as an eye-witness to the occurrence. He is virtually a next-door neighbour of Sabir Ali and is also in good terms with him. He knows Parveen, the grand-daughter of Sabir Ali as a neighbour. He sees that a number of persons are committing rape on that minor girl, Inspite of that he does not take any steps to render any assistance to the victim girl either by direct approach or by raising shouts to attract the people of the neighbourhood or even by personal approach to Sabir Ali. It has to be remembered that the locality is a densely populated Busty area. However P.W. 5 has taken the plea that he did not do anything because the accused persons were of dangerous character. But he however says that he informed Sabir Ali about the incident on 8.6.93 and also reported the incident to the two other persons named by him. Even if it is assumed that he was afraid of the accused persons yet it will be very difficult to accept that he would not have reported the matter to Sabir Ali in that very night at least separately and confidentially so that Sabir Ali could take necessary steps for tracing out Parveen. It will have to be remembered that Sabir Ali is a next-door neighbour of Sk. Panchu. It is shockingly unusual that Sk. Panchu after seeing the ghastly incident of beastly gang-rape committed by at least three persons on the minor girl Parveen is peacefully returning to his house and is not even reporting the matter to parveen''s grand-father Sabir Ali that very night although Sabir Ali is his next-door neighbour with whom he is having good terms. Then again we get it from the evidence of Sk. Panchu that on the next day when Sabir Ali and others were searching for Parveen in that locality Sk. Panchu also joined the search party, but did not raise any whisper as to what he now claims to have seen in the previous night regarding Parveen. In his cross-examination Sk. Panchu says that on 7.6.93 at about 3.30 p.m. he came to know that Parveen had been killed. He further says that when he came to know that Parveen had been missing he along with para people searched for her. What is more surprising is that, as he says, they advised Sabir Ali, Imam Ali and Salim to go to the P.S. to report the incident (missing incident) on the ground that he could not go there. His evidence is to the effect that after sending Imam Ali etc. to the P.S. for lodging missing report about Parveen he and Sk. Asraf returned to their respective houses. It is very difficult to believe that Sk. Panchu will be searching for Parveen along with the search party of Sabir Ali on 7.6.93 before the discovery of the dead body of Parveen and will not yet disclose to Sabir Ali what he now claims to have seen in respect of Parveen in the previous night if really he had witnessed any such incident. He also does not disclose anything even after the discovery of the dead body of Parveen on 7.6.93 to his knowledge. This is really something grossly unusual and is incapable of being explained by the theory of fear for the accused persons inasmuch as according to his own evidence he disclosed the incident on 8.6.93 and according to the evidence of his companion co-eyewitness Asraf they called people in the very night of the incident but the people did not wake up. His evidence is also thus materially inconsistent with the evidence of Asraf on the question whether they tried to report the incident to others on that very night. What is more surprising is that although in court Sk. Panchu claims to have seen all the accused persons committing rape on Parveen to the police officer A.K. Lahiri he did not tell that he noticed all the three accused persons committing rape on Parveen, What he stated to the police officer while examined u/s 161 Cr.P.C. is that it appeared to him that Sk. Bablu, Chandi Munna, Firoz and Gia would do some obnoxious act with respect to Parveen. The said P.W. 25 was also very categorical in his cross-examination that in course of his investigation he did not collect any evidence to the effect that any witness saw any overt act committed by the accused persons in the light of the lamp post and that the witnesses who were examined by him (obviously including Sk. Panchu also) did not state that the accused persons committed rape on Parveen. In the circumstances how can the court place reliance on the evidence of this Sk. Panchu who now claims to be an eye-witness to the commission of rape on Parveen by all the three accused persons when he did not state so to the police officer while examined under section. 161 Cr.P.C. that he saw the accused persons or any of them committing rape on Parveen. The evidence of Sk. Panchu in our considered opinion is tainted with improbabilities and inconsistencies strong enough to expose the credence of his evidence to serious doubt. In this connection it may be noted here that Sk. Panchu did not state to the police officer while examined u/s 161 Cr.P.C. that in the concerned night he was standing near the dustbin of 11A. Tiljala Shibtala Lane and noticed the incident from that place. It has been commented upon by the learned Advocate for the appellants that the introduction of the dustbin by this witness is totally an after thought and no dustbin has also been shown in the site plan prepared by the official plan maker. It is however submitted on behalf of the state that at the time when the plan maker made the plan it was not yet known to the police officers that the dustbin would have any significance in connection with this case. It may be mentioned here that the plan maker visited the spot on 8.6.93 at about 3.15 p.m. as appears from his evidence.

The second witness who claims to be an eye-witness to the occurrence of rape is Asraf Hossain who is a resident of 11B. Tiljala Shibtala Lane. According to his evidence in the night of 6.6.93 at about 10.30/10.40 p.m. he came out of his residence to take ''pan'' and smoke after finishing his dinner but he found that the two ''pan'' shops where he had gone for the purpose had already been closed and then he was returning to his residence when on his way He saw Panchu standing near dustbin and trying to witness something. He then went to Panchu and enquired about the matter to which Panchu, he says, pointed out a place by the side of the room of Motijan Bibi at 3. Tiljala Shibtala Lane and asked him to witness the incident which was taking place there, and accordingly he (Asraf) looked at that direction and saw the three accused persons and one Gia with a minor girl whom he could recognise as Parveen, the grand-daughter of Sabir Ali. He wants to say that at that time he saw the accused Firoz committing rape on Parveen and at that time the accused Chandi Munna cought hold of Parveen''s hands and the accused Bablu was placing hands on Parveen''s mouth while Gia was guarding that place. It appears from the evidence of S. Banerjee. I.O. that while examined u/s 161 Cr. P.C. Asraf did not tell that Sk. Firoz committed rape on Parveen or that Chandi Munna caught hold of her hands or that in the relevant night he saw the accused Bablu placing hand on the mouth of the victim Parveen or that seeing the incident he told Sk. Panchu that accused persons were of danergous character. Asraf in his evidence says that seeing the incident he told Sk. Panchu that the miscreants being of dangerous character it would be better to call the people of the locality and then they tried to call some people of the locality but none woke up responding to their call and then he advised Sk. Panchu to return home and thereafter they returned to their respective (sic). He also is in good terms with Sabir Ali and his son Imam Ali as he says in his evidence. The following day. that is, 7.6.93 was a Bangla Bandh day and Asraf says that in the early morning of that date he went to the house of his father-in-law at Tapsia and returned home at about 8.30 a.m. on 8.6.93 and learnt that Parveen had been killed and thereafter he left his house far his place of work. From his cross-examination however we get that the house of his father-in-law is only about 5/7 minutes'' walk from his residence.

There are some patent inconsistencies between the evidence of P.W. 5 and P.W. 8. both of whom claim to be eye-witnesses to the incident of rape. While P.W. 5 speaks of commission of rape by all the three accused persons. P.W. 8 speaks of such commission by only one accused, namely, Firoz. He does not say about commission of rape by any other accused person. It is true that he joined Sk. Panchu later. But the evidence of Panchu does not indicate that the time gap between his starting of witnessing the incident and the joining of Asraf Hossain was so wide that in the meantime two other accused persons could have committed rape on the victim in succession. Then again Sk. Panchu does not say anything about the role of the accused Sk. Bablu and Chandi Munna in pressing the hands and the mouth of the victim while the accused Firoz was committing rape as stated by Asraf. Again according to the evidence on P.W. 8 they tried to call people on seeing the incident but none responded and that is why they returned to their respective houses, but P.W. 5 Panchu however does not say that they made any effort to call people. Even if the other people did not respond to their calls it was natural and expected that they would at least go to Sabir Ali immediately to inform him about the incident when they could recognise that the victim was his grand-daughter, which however they did not do, inspite of the fact that Sabir Ali is not only a resident of that locality but is also a next-door neighbour of Sk. Panchu having good relation with both the witnesses Panchu and Asraf. No fear theory also can hold water, because according to the evidence of Asraf they tried to call people immediately in that very night but none responded. Therefore to fear for the accused persons deterred them from calling people although they could not., due to such fear be bold enough to directly challenge the culprits. In the circumstances when no other people responded to their calls, it would have been only natural to rush to Sabir Ali, the grand father of the victim and report the incident to him, particularly when Sabir Ali was a next-door neighbour of Panchu having good terms with them. But they did not do so. This projects a gross improbability materially impairing the value of the evidence of these two witnesses who claim to the eye-witnesses to the incident of rape. The evidence of Sk. Panchu shows that on the next day both he and Asraf Hossain also joined the search party searching for Parveen but even at that time neither Sk. Panchu nor Asraf Hossain disclosed anything about what they now claim to have seen in the previous night to any one and rather advised Sabir Ali and his son Imam Ali to lodge a missing diary at the P.S. The inherent improbabilities writ large in the conduct of both these witnesses Sk. Panchu and Asraf and the inconsistencies in their evidence as discussed make it patently difficult to accept their evidence as reasonably reliable. Worst of all, they did not at all tell the police while examined u/s 161 Cr.P.C. that they witnessed any rape by any accused.

Apart from the aforesaid two witnesses claiming to be the eye-witnesses to the incident of rape the prosecution have also examined certain other witnesses, namely, Hasina Begum and Jafar Ali to connect the accused Firoz with the incident by circumstantial chain. Here however we would like to mention that Sahida Bibi, the wife of Sk. Felu who is the immediate neighbour of Sabir All says in her evidence that Parveen visited their room to witness T.V. in the evening on 6.6.93 and remained there upto 8 p.m. and thereafter she left. According to the prosecution case Parveen was, some time thereafter, seen by Hasina Begum who is a resident of 11A, Tiljala Shibtala Lane and is also a next-door neighbour of Sabir All. The evidence of Hasina Begum is that on 6.6.93 at about 9/9.30 p.m. She saw Parveen just outside the window of her room (that is, the room of Hasina Begum) when it was raining and Hasina enquired as to why she was exposing herself to shower to which Parveen replied that uncle Firoz (Firoz Chacha) had gone to bring lollipop for her and that is why she was waiting there and after hearing Parveen''s reply she (Hasina) closed her door and retired for the night. Hasina also says that the accused Firoz used to visit their locality frequently. Her further evidence is that on the next day, that is, on 7.6.93 at about 1/1.30 p.m. she returned home from the market and found Sabir Ali weeping as Parveen had been missing and she then told Sabir Ali that on the previous night she had seen Parveen waiting outside her window for lollipop which was to be brought to her by the accused Firoz. She further says that on that date at about 4/4.30 p.m. she heard that Parveen''s dead body had been found in their locality; The learned Advocate for the appellants argues that the evidence of Hasina as to what she claims to have heard and learnt from Parveen in the previous night about the accused Firoz and lollipop is not admissible in evidence, being hit by the rule of hearsay evidence. It is further argued by him that Section 32 of the Indian Evidence Act, 1872 is also not applicable in this matter so as to make such statement admissible as dying declaration because at the time when Parveen allegedly made that statement to Hasina, she was not yet under any apprehension or anticipation of death. It may be true that when Parveen allegedly made that statement to Hasina she was not yet under any apprehension or anticipation of death but that is not necessary to be so for the admissibility of a statement u/s 32 of the Evidence Act. Under the said Section 32(1) the statement made by a person who is dead becomes relevant and admissible in evidence--''when the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person''s death comes into question''. (Emphasis supplied), Further, Section 32(1) makes it clear that such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question. The provisions of Section 32(1) as referred to above would thus clearly show that to make a statement admissible u/s 32(1) it is not necessary that the person making the statement should have been under expectation or anticipation of death at the time of making such statement. It is also not an exclusive requirement that such statement must refer necessarily to the cause of the death of the person making the statement. In view of the express provisions of Section 32(1) and the use of the word ''or'' in that connection it is evident that even if a statement does not directly refer to the cause of death yet if it relates to any of the circumstances of the transaction which resulted in the death of the person making the statement, such statement becomes relevant and admissible in evidence in a case in which the cause of that person''s death comes into question, and this is so irrespective of the question whether the person making such statement was under any apprehension or expectation of death at the time of making such statement. Now in the present case Parveen is dead. She allegedly made a statement in the previous night to Hasina that she was waiting there for the accused Firoz who would bring lollipop for her. The accused Firoz has been charged with murder of Parveen committed in that night. Evidently the alleged circumstance that Parveen was waiting at about 9/9-30 p.m. for lollipop to be brought by the accused Firoz is sought to be pressed into service as one of the circumstances of the transaction which resulted in the death of Parveen that was allegedly caused by some persons including Firoz, and is therefore plainly admissible u/s 32(1) is distinctly more extensive in its scope than the any of the circumstances of the transaction which resulted in his death as used in Section 32(1) is distinctly more extensive in its scope than the alternative expression the cause of his death as used therein. Also the expression any of the circumstances of the transaction which resulted in his death has wider import than the circumstance of the death a statement may not relate to the circumstance of the death in the sense of referring to the situation obtaining at the time when death actually occurred but yet it may point out or refer to a causative, contributory or opportunity prone circumstance forming part of the transaction in its cumulative form which culminated in the death of the concerned person. The cause and effect (i.e. result) need not necessarily mark a direct relationship between the circumstance disclosed by the statement of the deceased and his death it is enough if the disclosed circumstance has a related association with any aspect of the transaction in its cumulative form and death is the effect or result of such transaction. At the same time the circumstance in question must have a proximate relation to the occurrence rather than being too remote, vague or speculative in its import Examined on the anvil of the aforesaid tests and in the light of the decision of the Privy Council AIR 1939 47 (Privy Council) where it was held that the statement of the deceased to his wife that he was going to a place where he had been asked by the wife of the accused to come and receive payment of dues, was admissible in evidence, we hold that the alleged statement of the deceased Parveen to Hasina in the night of the 6th June, 1993 that she was waiting there for lollipop to be brought by Firoz is indeed admissible in evidence u/s 32(1) of the Evidence Act as a relevant circumstance. But at the same time we must make it clear that this circumstance alone can not be taken as the sure proof of the guilt of the particular accused. This is only a circumstance which will have to be considered along with the other facts, circumstances and evidence on record for arriving at a judicial finding on the merit of the charge.

But apart from the question of admissibility of the alleged statement of the deceased Parveen we are faced with the question as to how far the evidence of Hasina about what Parveen allegedly stated to her in that night is acceptable or reliable. Hasina is a next door neighbour of Sabir Ali. At about 9/9.30 p.m. she is seeing Parveen waiting outside her window for lollipop to be brought by the accused Firoz. It is at about the same time namely, at about 9.30 p.m. Sabir Ali is visiting his neighbour''s room, that is, the room of Sahida Bibi in search of Parveen, and not finding her there Sabir Ali searched for Parveen here and there in that locality upto 10.30 p.m. but could not trace her out. That being so the improbability of Parveen''s presence in front of the window of Hasina who is a next-door neighbour of Sabir Ali is apparent. If Parveen was really waiting there at that time in front of the window of her neighbour Hasina for lollipop, Sabir Ali should have in all probability, found her in course of his search for her around that time in that locality. It is a very important clue if really Parveen was waiting there for lollipop to be brought by the accused Firoz precisely that is why this fact was allegedly reported by Hasina to Sabir Ali when she found that Sabir Ali was weeping for his missing grand-daughter Parveen at about 1/1.30 p.m. on 7.6.93 But surprisingly enough this important clue allegedly supplied by Hasina to Sabir did not make any mark. It appears that this vital information or clue is not being reflected not only in the missing diary lodged at the P.S. by the son of Sabir Ali at about 2.30 p.m. but is also not at all reflected or whispered in the statement of Sabir Ali which was made to the notice in the evening of 7.6.93 and which was treated as FIR. In that statement also Sabir Ali is not disclosing that in that afternoon at about 1/1.30 p.m. he received any information from his next door neighbour Hasina that she had seen her grand-daughter in the previous right waiting in front her window and also stated to her (Hasina) that she (Parveen) was waiting there for lollipop to be brought by Firoz. On the other hand in his FIR-statement recorded in the evening of 7.6.93 Sabir Ali is only stating that someone having outraged her modesty had murdered Parveen and tried to destroy the evidence. No whisper of lollipop or Firoz in that statement. This is an improbable circumstance and makes it doubtful whether Hasina really made any such statement to Sabir Ali at about 1/1.30 p.m. about lollipop and Firoz as stated by Hasina. This Hasina was also examined by the police u/s 161 Cr.P.C., it appears on 7.6.93. If really she had made any such statement about what she learnt from Parveen in the previous night regarding lollipop and Firoz, the police expectedly would have taken immediate action in arrest or contact Firoz in that very evening on the basis of the statement of Hasina. But such a vital clue also, it seems, did not make any mark even on the police and the police went in search of the accused Firoz on 9.6.93 at about mid-night and arrested him from the same locality. In view of all these circumstances the evidence of Hasina also, in our view, loses much of its credibility. It also cannot escape our notice that although Hasina Begam says that she reported to Sabir Ali at about 1/1.30 p.m. as to what she learnt from Parveen in the previous night, yet Sabir Ali does not make any whisper in his evidence that he learnt anything in this regard from Hasina or Hasina reported to him anything in the matter at any point of time.

Now we come to the evidence of Jafar Ali who also comes to introduce a circumstance to connect the accused Firoz with the incident. He is a resident of 11B, Tiljala Shibtala Lane. His evidence is that on 6.693 at about 11 p.m. while he was sitting in front of Chaki Gallik of then locality and was smoking he saw that the accused Firoz was taking away Parveen placing, her on his shoulder. He further says that at that time Firoz was wearing one lungi and one check red-coloured shirt. He also saying that seeing Firoz carrying Parveen he finished smoking, returned home and retired for the night. His further evidence is that on 7.6.93 he stayed back at his residence on account of Bangla Bandh and at about 4/4.30 p.m. he heard hue and cry raised by the local people the effect that Parveen''s dead body had been discovered in the brick-built pit attached to the house of Motijan Bibi at 3. Tiljala Shibtala lane and on hearing the same he along with others visited that spot and found Parveen''s dead body lying inside the pit and thereafter police arrived at the spot. He further says that Parveen was putting on a frock of orange colour when she was being carried away by the accused Firoz. The accused Firoz, he says, is also a resident of Tiljala Shibtala Lane. In his cross-examination he says that in the afternoon of 7.6.93 after the discovery of Parveen''s dead body inside the brick built pit he did net report to any one the incident winch he had witnessed on 6.6.93 at about 11 p.m. In our opinion this is also not a probable or natural conduct on the part of Jafar Ali not to disclose anything to anybody even after the discovery of as to what she learnt from Parveen in the previous night, yet Sabir Ali does not make any whisper in his evidence that he learnt anything in this regard from Hasina or Hasina reported to him anything in the matter at any point of time.

Now we come to the evidence of Jafar Ali who also comes to introduce a circumstance to connect the accused Firoz with the incident. He is a resident of 11B, Tiljala Shibtala Lane. His evidence is that on 6.6.93 at about 11 p.m. while he was sitting in front of Chaki Galli of their locality and was smoking he saw that the accused Firoz was taking away Parveen placing her on his shoulder. He further says that at that time Firoz was wearing one lungi and one check red-coloured shirt. He also says that seeing Firoz carrying Parveen he finished smoking, returned home and retired for the night His further evidence is that on 7.6.93 he stayed back at his residence on account of Bangla Bandh and at about 4/4.30 p.m. he heard hue and cry raised by the local people to the effect that Parveen''s dead body had been discovered in the brick-built pit attached to the house of Motijan Bibi at 3. Tiljala Shibtala Lane and on hearing the same he along with others visited that spot and found Parveen''s dead body lying inside the pit and thereafter police arrived at the spot. He further says that Parveen was putting on a frock of orange colour when she was being carried away by the accused Firoz. The accused Firoz, he says, is also a resident of Tiljala Shibtala Lane. In his cross-examination he says that in the afternoon of 7.6.93 after the discovery of parveen''s dead body inside the brick built pit he did not report to any one the incident which he bad witnessed on 6.6.93 at about 11 p.m. In our opinion this is also not a probable or natural conduct on the part of Jafar Ali not to disclose anything to anybody even after the discovery of the dead body of Parveen in the afternoon of 7.6.93 inspite of the fact that he also went to the place at that time where the dead body was lying and in his presence the police came there. It is only natural that after the discovery of Parveen''s dead body when people and police had arrived at the spot and when he himself also was present there he would have disclosed that in the previous night he had seen that. But he does not do that. He keeps totally mum and now comes in the witness box to tell what he claims to have seen regarding Parveen and Firoz in the night of 6.6.93. He also does not offer any explanation for his such conduct in keeping mum nor any explanation in this regard has been taken from him by the prosecution as to why he did not disclose fact to any one even after the discovery of Parveen''s'' dead body although he also went there to see the dead body. Having regard to the natural human conduct and probable reaction of human mind in such circumstances we find it difficult to place reliance on his evidence.

The wearing apparels of the accused persons which were seized by the police were sent for chemical examination but the examination report does not disclose any incriminating factor. It also cannot be said that the seizure of wearing apparel from one''s own house or from his father-in-law''s house can be said to be recovery from an unusual place so as to indicate by itself any incriminating circumstance in respect of the accused persons. It also goes unexplained why the frock stated to be frock of Parveen which was seized on 8.6.93 from the same place where the dead body was found on 7.6.93 was not found or seized on 7.6.93 along with the other articles such as sandal etc. seized from that place on 7.6.93.

One special feature of this case is that the accused Sk. Bablu led evidence in this case in his defence that his marriage with Rabina Khatun took place at about 4 p.m. on the date of occurrence at Para maszid at Calcutta, meaning, the Nakhoda maszid and after his marriage he came to their house and stayed inside the house overnight and therefore he could not have been involved in the commission of the offences he has been charged with. This is a plea of alibi taken by the accused Bablu. He also examined two defence witnesses in support of his plea of alibi and those two witnesses are Rabia Khatun, the bride and Halima Khatun his mother. After the conclusion of the defence evidence the prosecution made prayer before the trial court for examination of the Imam of Nakhoda Maszid and the learned trial court allowed the prayer and examined Md. Sabir, the Imam of Nakhoda maszid as a court witness. Since, when hearing those matters we felt that Sk. Bablu was not given adequate opportunity to cross-examine the court witness we allowed the accused-appellant Bablu an opportunity to cross-examine that witness before us in course of these matters. Accordingly the said court witness and in fact another court witness being court witness No. 2, an officer of the Calcutta Electric Supply Corporation were cross-examined and it was elicited from him Bablu before us in course of hearing of these matters. Accused Sk. Bablu could not produce any document in support of his alleged marriage, the Imam of the concerned Maszid was examined and it was elicited from him that the record of the Maszid does not show that any such marriage of the accused Bablu took place in that Maszid on the relevant date. The learned trial Judge disbelieved the plea of marriage as well as the plea of alibi taken by the accused Sk. Bablu having gone through the evidence on record we also cannot say that the accused Bablu has been able to prove his plea of marriage, or for that matter, the plea of alibi by any cogent evidence even going by the standard of preponderance of probability. But that by itself should not lead the court to jump to the conclusion that the failure to prove the plea of alibi necessarily establishes the prosecution case against the concerned accused. If the prosecution case as projected and the evidence adduced by the persecution to substantiate the involvement of the accused in the commission of crime he has been charged with, are themselves deficient to material extent and suffer from material infirmities, inconsistencies and incompatibilities as obtaining in this case so as to render it unsafe to base a conviction thereon going by the standard of proof beyond reasonable doubt, in that event the mere feature to establish the defence plea cannot be a ground for conviction. Inspite of the failure to prove the defence plea as taken by accused Bablu we are still required to consider whether the prosecution evidence is good enough to warrant a conviction of the accused by finding him or them guilty beyond reasonable doubt.

In summing up we must say that the two eye-witnesses, namely, Sk. Panchu and Asraf Hossain do not appear to us at all reliable. Not only that there are mutual inconsistencies in their evidence as discussed, but even their conduct in not reporting at least to Sabir in that very night or even on the next day while they joined the search parry as to what they saw appears to us extremely improbable judged by the normal standard of natural human conduct, if they had really seen the incident of rape. On the top of all, they are coming in court to testify to the incident of rape as eye-witnesses, but surprisingly enough while examined u/s 161 Cr.P.C. during investigation they did not state to the Investigating Officer at all that they witnessed rape on Parveen by any of the accused persons. For reasons already discussed elaborately we also do not consider it safe to rely on the evidence of Hasina Begum and Jafar Ali. In fine, we are constrained to record that the evidence of these witnesses, namely P.Ws. 5, 8, 4 and 17, whether considered severally or jointly cannot stand the tests of judicial scrutiny, as we have already discussed elaborately. And bereft of the evidence of these witnesses, the prosecution have no legs to stand upon. As regards the injuries found on the body of the accused Firoz and of Chandi Munna it is only to be stated that these are not complatible with the prosecution version of the occurrence as projected by P.W. 5 and P.W. 8 who claim to be eye-witnesses to the commission of rape inasmuch as according to their evidence the victim girl could not or did not offer any resistance at all so as to cause any nail injury to any of the culprits. Even assuming that these injuries may raise an initial suspicion against the concerned accused persons yet such suspicion can not take the place of legal proof where there is no other trustworthy evidence, direct or circumstantial, to substantiate the prosecution case against the accused persons. We therefore hold that the prosecution have not been able to establish the charges against the accused persons beyond reasonable doubt. There is no doubt that an abject crime like the one involved in this case is an object of universal abhorrence and it is for maintaining the supremacy of the rule of law and in the interest of the society that such crime should not go unpunished. But then the question of punishment crops up only after the process of detection and the process of proof have successfully played their rotes. Again the court must base its decision on legal proof, proof beyond reasonable doubt based on trustworthy evidence capable of standing the tests of judicial scrutiny which is something entirely different from mere suspicion and speculation. We however find, as already recorded, that the evidence adduced by the prosecution in this case is not good enough to establish the charge against the accused persons beyond reasonable doubt, the fact that a crime goes unpunished is sure to cast a melancholy gloom in the mind of every right thinking citizen including the Judge who delivers the verdict of acquittal and this is so not because the particular accused persons are acquitted but because the crime goes unpunished. If my recollection is correct a character in Dickens expressed the opinion ''Better hang the wrong man then no man at all''. This is precisely what the Judge has to prevent, Nay, he is to ensure further that no man is hanged or convicted unless he is proved beyond reasonable doubt to be the right person for the purpose. In dealing with a case of this nature where passion is likely to run high in the ardent pursuit of justice for the victim, where the pathos of the rolling drops of tears of the bereaved members of the victim''s family legitimately evoke compassion making human mind instinctively restless in search of a solace for them, where ''suspicion'' tends to infiltrate silently into the vaccum in evidence, where qualitative deficiency in evidence seeks to take shelter under its quantitative array, the court has a special responsibility to see that the functional equilibrium of the judicial process of assessment is not so disturbed by any compulsive emotion as to misguide itself to an un sustained conclusion. As we have held on a dispassionate and circumspective consideration of the evidence on record that the proesecution have failed to prove the charges brought against the accused persons beyond reasonable doubt, we reject the death reference and allow both the appeals and set aside the conviction and sentences imposed on the accused persons and acquit them of the charges framed against them. The appellants be set at liberty if their detention is riot required under law in connection with any other matter.

Dibyendu Bhusan Dutta, J.

I agree.