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Calcutta High Court (Appellete Side)
The State Of West Bengal vs Sk. Hasina Sultana & Anr on 21 August, 2025
Author: Debangsu Basak
Bench: Debangsu Basak
2025:CHC-AS:1595-DB
IN THE HIGH COURT OF CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Debangsu Basak
And
The Hon'ble Justice Md. Shabbar Rashidi
DEATH REFERENCE NO. 01 OF 2024
THE STATE OF WEST BENGAL ... APPELLANT
Vs.
SK. HASINA SULTANA & ANR ... RESPONDENTS
With
CRIMINAL APPEAL (DB) NO. 114 OF 2024
SK. VANNUR SHA @ SK. VANNUR SA ... APPELLANT
Vs.
STATE OF WEST BENGAL ... RESPONDENT
CRIMINAL APPEAL (DB) NO. 71 OF 2024
SK. HASINA SULTANA ... APPELLANT
Vs.
STATE OF WEST BENGAL ... RESPONDENT
For the Appellants : Mr. Sandipan Ganguly, Sr. Adv.
[In CRA (DB) 114/2024] Mr. Bibaswan Bhattacharya, Adv.
Ms. Manaswita Mukherjee, Adv.
[In CRA (DB) 71/2024 Mr. Dipak Kumar Prahladka, Adv.
Ms. Reshmi Khatun, Adv.
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For the State : Mr. Debasish Roy, Ld. P.P.
Ms. Amita Gaur, Adv.
Ms. Nahid Ahmed, Adv.
Hearing concluded on : 15.07.2025
Judgment on : 21.08.2025
MD. SHABBAR RASHIDI, J.:-
1. The Death Reference and the two appeals have arisen out of the
common impugned judgment of conviction dated February 27, 2024
and the order of sentence dated February 29, 2024 passed by learned
Additional Sessions Judge, Fast Track Court - I, Howrah, in Sessions
Trial No. 139 of 2016.
2. By the impugned judgment, the appellants were found guilty and
were convicted for the offence punishable under Sections 302/201/34
of the Indian Penal Code, 1860. Consequently, by the impugned order
of sentence, the appellants were sentenced to death for the offence
punishable under Section 302 of the Code of 1860. The appellants
were further sentenced to suffer rigorous imprisonment of 5 years with
fine of ₹10,000/- each for the offence punishable under Section 201 of
the Indian Penal Code. In default of payment of fine, the convicts were
to suffer rigorous imprisonment for a further period of one year each.
3. Learned advocate representing the appellant Sk. Vannur Sha
submitted that the confession made by a co accused cannot be
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considered as the primary evidence. It is contended that the
prosecution must come up with certain primary evidence in support of
its case and only after that, a confession made by a co accused can be
considered for proving the case of the prosecution.
4. Learned advocate for such appellant also submitted that the
evidence of PW13 cannot be relied upon for the same suffers from
material infirmities telling upon its veracity. Timeline stated by such
witness does not match with the sequence of events. Referring to the
evidence of PW15, it is contended that the person who is said to
arrange a rented accommodation for the appellants was not examined
by the prosecution.
5. Learned advocate for Sk. Vannur Sha also contended that
according to the narration given by PW13, the appellants with the
victim child started residing at his house since December 23, 2015
and stayed there for 15 days. In such sequence of events the
appellants must have left the house of PW13 around January 6, 2016
to January 8, 2016 whereas, the dead body of the child was recovered
at Howrah Station on January 24, 2016. The prosecution has not
been able to establish the whereabouts of the appellants between
January 8, 2016 and January 23, 2016.
6. It was further submitted by learned advocate for appellant Sk.
Vannur Sha that PW13 could not produce any document to establish
that the appellants stayed at his house on rent. Besides that, the son
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of PW13 and his neighbours were not examined by the prosecution, in
support of the statement of PW13. For such reason the testimony of
PW13 cannot be relied upon. It was also contended that the
prosecution has not proved that the victim child was in the company
of the appellants in an around the time of his death. Therefore, the
appellants cannot be obliged to explain the circumstances of death of
the victim based on Section 106 of the Indian Evidence Act, 1872.
7. Learned advocate for such appellant also submitted that the
CCTV footage produced on behalf of the prosecution is not supported
by a certificate under Section 65B of the evidence Act, and as such,
the CCTV footage cannot be relied upon to convict the appellants. It
was also submitted that the appellant Sk. Vannur Sha was not
confronted with the statement of the co-accused recorded under
Section 164 of the Criminal Procedure Code, at the time of his
examination under Section 313 of the Code of Criminal Procedure. As
such, the statement of the co-accused cannot be taken into
consideration as against the appellant. In support of such contention,
learned advocate for appellant Sk. Vannur Sha relied upon (1952) 1
Supreme Court Cases 275 (Kashmira Singh V. State of M. P.) and
(2007) 4 Supreme Court Cases 266 (Prakash Kumar V. State of
Gujarat).
8. Learned advocate for such appellant also submitted that the
photographs of the victim could not have been admitted in evidence
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without the examination of the person who had taken the
photographs. It was also submitted that the evidence on record is
silent as to whether the photographs were taken by a digital camera or
analog camera. In the case of digital camera, the photographs must
have been proved with the help of a certificate issued in terms of
Section 65B(4) of the Indian Evidence Act, 1872. In support of such
contention, learned advocate for the appellant relied upon 2020 SCC
OnLine Cal 989 (Nasir Mallick V. State of W.B).
9. Learned advocate for the appellant also submitted that several
material witnesses like the son of PW 13, his neighbours and the
person who arranged the rented accommodation for the appellants
were not examined by the prosecution. According to him, non-
examination of such material witnesses renders the case of the
prosecution doubtful giving rise to an adverse inference. To such
proposition, reliance was placed upon (1953) 2 Supreme Court Cases
231 (Habeeb Mohd. V. State of Hyderabad). It was also contended
by learned advocate for the appellant that photocopy of a certificate of
the victim was seized. A photocopy of a document was not admissible
in evidence. In support of such contention, learned advocate relied
upon (1978) 4 Supreme Court Cases 474 (Davendra Prasad Tiwari
V. State of U. P) and (1995) 2 Supreme Court Cases 76 (Shivappa
V. State of Karnataka).
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10. Learned advocate for the appellant Sk. Hasina Sultana
submitted that the post mortem report proved by the prosecution does
not contain the time and cause of death of the victim. It was also
contended that though, the investigating officer received information of
a missing complaint lodged at Tenali-1 Police Station, however, no
steps were taken to hand over the dead body to such police station.
11. Learned advocate for such appellant also submitted that the
investigating officer, although, visited the house of the father of the
victim, he also visited Howrah Sadar Hospital where the dead body of
the victim was handed over to him but such father of the victim was
not examined at the trial. Similarly, the witnesses to the arrest of the
appellants were not examined. The seizure list through which empty
stripe of Cetrizine tablets was seized was not mentioned by PW13 in
his deposition. However, no poison could be detected in the viscera of
the victim upon chemical examination. According to him, such
discrepancies render the case of the prosecution highly doubtful.
12. It was also contended that the appellant Sk. Hasina Sultana
stated in her examination under Section 313 of the Code of Criminal
Procedure that her statement recorded under Section 164 of the
Criminal Procedure Code was made being tutored by police and as
such, the same cannot be relied upon to secure her conviction.
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13. Learned advocate for such appellant also contended that no part
of the alleged offence was committed within the jurisdiction of learned
trial Court; therefore, the entire trial is vitiated for want of jurisdiction.
14. On the other hand, learned advocate for the State submitted that
there are no discrepancies in the evidence of PW13. He never deposed
that the victim was murdered just after leaving his house. He just
testified that the appellants stayed with the victim child at his house
and that there appears no doubt in such testimony. Learned advocate
for the State also submitted that non examination of the son of PW13
or the friend of the appellant, who is alleged to have arranged rented
accommodation for them, is not fatal. The prosecution cannot be
brandished for withholding vital witnesses.
15. Learned advocate for the State further submitted that the dead
body was recovered at Howrah railway station which is within the
jurisdiction of the learned trial court. As such, the trial cannot be said
to vitiate for want of jurisdiction.
16. Learned advocate for the State also submitted that the
prosecution has been able to bring home the charges levelled against
the appellants with the help of convincing evidence beyond all
reasonable doubts and therefore, learned trial court was justified in
convicting the appellants and imposing the sentences.
17. One S.I. Tapas Chatterjee of Howrah GRPS lodged a suo motu
written complaint on January 24, 2016 with the Howrah GRPS.
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According to such written complaint, the duty officer S.I. Ekbalur
Rahaman of Howrah GRPS received a Railway Memo at 19:20 hours
on January 24, 2016 from on-duty Station Manager, New Complex,
Howrah. Such Memo disclosed that one male baby approximately aged
about one year, was found seemingly dead, inside a bag under the
seat of coach No. GS 06424SC of 12740 Dn. Falaknama Express
which had arrived at platform No. 22. On receipt of such Memo,
Howrah GRPS GDE No. 1857 dated January 24, 2016 was lodged and
being endorsed, the de-facto complainant proceeded to the spot with a
constable and dom. The written complaint also stated that on reaching
the spot inside the coach of 12740 Dn. Falaknama Express standing
at platform No. 22 of Howrah, the de-facto complainant observed a
black coloured medium size side bag which contained the dead body
of an unknown male baby lying in fully naked condition. The de-facto
complainant also noticed a deep haematoma over the left chin of the
baby with bluish/blackish spot all over the body. He further noticed
that the body of an unknown baby aged about one year and that the
lips of the deceased baby were abnormally blackish and there was
emission of blood from his nostrils.
18. The de-facto complainant conducted the inquest over the dead
body in connection with Howrah GRPS Unnatural Death Case No. 4 of
2016 dated January 24, 2016. He also seized the black coloured bag
which contained the dead body. The written complaint also stated that
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after observing the marks found on the dead body, the de-facto
complainant was of the opinion that the male baby was murdered
somewhere else and was kept in the running Dn. Falaknama Express
in order to cause disappearance of evidence.
19. On the basis of such written complaint, Howrah GRPS Case No.
1 of 2016 dated January 24, 2016 under Section 302/201 of the
Indian Penal Code was started against the unknown miscreants.
Police took up investigation and on completion of investigation
submitted charge-sheet in the case. The offences being exclusively
triable by the Court of Sessions, the case was committed to the Court
of Sessions. Consequently, on the basis of materials in the case diary,
charges under Sections 302/201/34 of the Indian Penal Code were
framed against the two appellants on June 16, 2016. The appellants
pleaded not guilty to the charges and claimed to be tried.
20. In order to prove its case, prosecution examined as many as 15
witnesses. In addition to, the prosecution also relied upon certain
documentary as well as material evidence.
21. The de-facto complainant himself deposed as PW 1. He
corroborated his statement in the written complaint. He stated that on
January 24, 2016 at 7:20 p.m., the duty officer received a Railway
Memo from the on-duty Station Manager, New Complex stating, inter
alia, that one male baby aged about one year was found, seemingly
dead, inside a bag at Dn. Falaknama Express. PW 1 started an
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unnatural death case. They investigated the matter. He along with a
constable and dom visited the platform No. 22 where the train was
standing. The dead body was brought up from a black bag with the
help of the dom which was kept under the seat of general
compartment. The dead body was naked and there were signs of
haematoma all over the body. PW 1 also found red mark near his lips
and bleeding from nose. Photographs of the dead body were taken. PW
1 conducted inquest over the dead body and prepared a report to that
effect. Thereafter, he sent the dead body for post mortem examination
and lodged a written complaint. PW 1 proved the written complaint
which was marked as Exhibit-1. He also proved the inquest report,
Exhibit-2. He also proved the seizure list dated January 24, 2016
through which the black bag was seized, Exhibit-3. He proved the
rough sketch map with index, Exhibit-4. PW 1 also stated that he
recorded the statement of the witnesses present at the time of recovery
of the dead body. He also seized the viscera of the baby and handed it
over to the investigating officer. He proved a seizure list dated January
25, 2016 (Exhibit-5). PW 1 also identified and proved the seized bag,
which was admitted in evidence and marked as Mat Exhibit- I.
22. The Station Manager of the South Eastern Railway deposed as
PW 2. He stated that on January 24, 2016 he received information
that a bag was found with a baby inside in one of the general
compartments of Falaknama Express. PW 2 went to the spot and
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believed that the baby was dead. He called upon the railway doctor
who examined the body and declared him to be dead.
23. A medical officer was examined as PW 3. He stated that on
January 25, 2016 he conducted autopsy over the dead body of one
unidentified male child aged about one year in connection with
Howrah GRPS U.D. Case No. 4 of 2016 dated January 24, 2016. On
such examination he found the following injuries:-
"Bruise over the right cheek; bruise on the entire anterior right
arm; fracture of the right humerus at the lower end; bruises on
the two lips; bruise on the left cheek; piecemeal fracture of the left
humerus with surrounding bruises; 6 nail scratches abrasion on
the right anterior lower neck; bruise on the mid-upper back;
abrasion of mid-sacral back; bruise of right posterior neck one
inch below right mastoid tip; bruise on the right posterior elbow;
scalp haematoma over the mid frontal scalp and sub-dural and
extra-dural haemorrhage of both cerebral hemisphere along with
bases."
24. PW 3 also stated that all the injuries found on the dead body
showed vital reaction. In his opinion, death was due to the aforesaid
ante mortem and homicidal injuries. PW 3 proved the post mortem
report prepared in his pen and signature which was marked as
Exhibit-7. He further opined that the injuries found on the person of
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the dead body could not have been caused by fall from a high surface.
However, he did not opine as to the time of death.
25. A Sub-Inspector of Police deposed as PW 4. He stated that on
January 24, 2016 Dn. Falaknama Express was stationed at the New
Complex of Howrah Railway Station at platform No. 22. He further
stated that after the passengers alighted from the train, one Jaynath
Yadav, an employee of the contractor of Railway Department was
checking the empty compartments of the train. In course of such
checking, one red coloured bag was spotted in a general compartment
kept under the seat. The bag was checked by Jayanth Yadav and it
was found that one baby was packed inside the bag and found in dead
condition. He reported the matter to PW 4. PW 4 along with one
Havildar Jeet Kumar went to the spot upon such reporting. They, in
turn, informed the same to the Station Master of Howrah Station after
seeing the dead body. PW 4 also stated that thereafter one S.I. of
GRPS Tapas Chatterjee (PW 1) along with some police personnel and
one dom came to the spot and interrogated PW 4 and others. After
that, one S.I. Swapan Das came there. One report was prepared at the
spot in presence of PW 4 where he put his signature. He proved his
signature, Exhibit-2/1. He also identified the seized bag. PW 4 also
stated that he found right side of the face of the deceased child full of
blood. PW 4 was cross-examined by the defence but nothing
favourable could be elucidated.
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26. A police constable was examined as PW 5. He stated that on
January 24, 2016 he was posted at Howrah South Post over the
platform Nos. 17 and 23 for checking the maintenance of the trains
arriving at. PW 5 further stated that Dn. Falaknama Express arrived
at platform No. 22 and upon checking the seat of the goods
compartment; one key man informed him that one red bag was lying
in the general compartment of the said train. Thereafter, PW 5
informed the matter to shift in-charge and with the help of key man
the red bag was taken out from the rail compartment and opened
outside the train. It was found to contain a dead body of a child. He
further stated that upon such recovery the shift in-charge informed
the matter to GRPS, Howrah. Thereafter, one Chatterjee sahib along
with other police personnel and dom came to the spot. Later on one
Das sahib also came there and PW 5 and others were interrogated.
The bag containing the dead body of the child was seized. He also
stated that the body of the child was full of injuries. PW 5 proved his
signature on the inquest report. He also identified the seized bag. He
was cross-examined by the defence.
27. A police personnel from Andhra Pradesh was examined as PW 6.
He stated in his deposition that he was posted as a Sub- Inspector at
Tenali-1 Town Police Station. He was authorised by the Officer-in-
Charge of Tenali-1 Town Police Station, Guntur, Andhra Pradesh to
depose in connection with the instant case. PW 6 proved the
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authorisation letter issued by the Officer-in-Charge of Tenali-1 Town
Police Station (Exhibit-10).
28. PW 6 also stated that as authorised by the Officer-in-Charge he
had brought some public documents maintained in Tenali-1 Town
Police Station, in original as well as attested copy thereof. He produced
the copy of a written complaint in Telegu language submitted at
Tenali-1 Town Police Station by one Sk. Roshan Bee, the original of
which was despatched to the concerned Court. On the basis of such
written complaint, a formal First Information Report was drawn up at
Tenali-1 Town Police Station. He also produced the said formal FIR in
connection with Tenali-1 Town Police Station Case No. 180 of 2015
dated December 29, 2015.
29. PW 6 further stated that the written complaint was alleged by
one Sk. Roshan Bee, wife of late Jonny aged about 60 years. According
to PW 6, the said written complaint was in connection with an incident
that the daughter of the de-facto complainant, namely, Sk. Hasina
Sultana and her child aged 1½ years had gone missing from their
house on December 22, 2015 at about 7:30 p.m. PW 6 proved the
written complaint, formal FIR as well as a translated copy of the
written complaint (Exhibit-11 series). He further stated that one head
constable Jayamohan Rao (N2826) was entrusted with the
investigation of the said case. He further stated that copies of these
official documents were handed over to the investigating officer of the
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case registered at the Howrah GRPS when he visited the Tenali-1
Town Police Station. A lookout notice in the name of Sk. Hasina and
her child was issued from Tenali-1 Town Police Station after initiation
of the case at Tenali-1 Town Police Station. An attested copy of the
lookout notice was proved by PW 6 as Exhibit-12 (the original was
returned to the witness). PW 6 also produced the case diary containing
the final report submitted in the missing case instituted at Tenali-1
Town Police Station. The final report in such case was proved as
Exhibit-13.
30. Another Police personnel was examined as PW 7. He stated that
on January 24, 2016 he was posted as constable at Howrah GRPS. At
about 4:30/5:00 p.m. one bag was found in the general compartment
of Falaknama Express which contained the dead body of a little baby.
He further stated that S.I. Tapas Chatterjee lodged information
regarding the incident and the case was registered over the incident.
S.I. Swapan Das was endorsed with the investigation of the case. PW 7
accompanied the investigating officer along with Constable Jawharlal
Bhowmil, lady constable Durga Patra, lady constable Moina Saha and
A.S.I. Uday Sankar Ghosh to Tenali-1 Town Police Station on January
28, 2016 by Falaknama Express. They reached on January 29, 2016.
There they came to know that a missing complaint was lodged in the
said police station in the name of one Sultana and her kid. PW 7 has
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no knowledge that the copy of the complaint was collected by the
investigating officer.
31. PW7 further stated that on January 30, 2016, PW 7 and other
personnel visited the house of the lady who lodged the missing
complaint at Guntur. There the missing lady named Sultana was
present. She was arrested upon interrogation. PW 7 also stated that
he and other police personnel came to know from such interrogation
that another person was also involved in the incident. The said
missing lady Sultana along with the said person had murdered the
little boy. Accordingly, on the basis of such interrogation PW 7 and
other police personnel proceeded to Hyderabad where her partner was
arrested. PW 7, however, could not say the name of the said person.
PW 7 was extensively cross-examined on behalf of the defence.
32. A lady Constable of police deposed as PW8. She stated that being
posted in such capacity on January 24, 2016, she came to know that
the dead body of a child was recovered kept in a bag from general
compartment of Falaknama Express at platform no. 22 at Howrah.
She further stated that on January 28, 2016, she accompanied the
investigating officer of the case with other members of police force to
Tenali-1 police station by Express. The police team reached there on
January 29, 2016 where they came to know that a missing complaint
was lodged by Roshan Bee, mother of the appellant stating, inter alia,
that the appellant Hasina Sultana and her child were missing.
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Accordingly, the police team, accompanied by police personnel from
Tenali-1police station, visited the house of Roshan Bee situated in a
place called 'Rice Colony' on January 31, 2016 at about 3.30/4.00
p.m.
33. PW8 further stated that on interrogation, the complainant stated
that her daughter had returned a day before but the child did not
return. The appellant i.e. the daughter of the complainant was
interrogated whereupon she disclosed that she had married the other
appellant Vannur Sha. She stayed with said Vannur Sha in a rented
accommodation at Hyderabad and was carrying for 3/4 months. On
interrogation, the appellant Hasina Sultana also disclosed that the
child used to cry and create commotion upon which the landlord used
to protest. For such reason, the two appellants used to beat the child.
One day the child was reeling under fever for which the child was
administered some medicine after assaulting him. Pursuant to such
assault and administering medicine, the child turned cold and died.
Thereafter, the other appellant, Vannur Sha packed the dead body in
black-red bag and left it in the general compartment of Falaknama
Express. She was then arrested. PW8 also stated that the appellant
Hasina Sultana also disclosed the residence of the other appellant
Vannur Sha situated within the jurisdiction of Tenali-1police station.
Accordingly, Vannur Sha was also interrogated. In his statement, he
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corroborated the statement of appellant Sk. Hasina Sultana,
whereupon, he was also arrested.
34. PW8 further stated that both the arrested appellants were
brought to Tenali-1 police station where; their statements were
recorded and translated by one Minu Mondal, an employee of a
jewellery shop near the said police station, who was conversant with
Telegu and Hindi. PW8 proved her signature on such statement in
Telegu transcript (Exhibit 14). She also proved her signature on the
seizure list through which copy of birth certificate of victim was seized
(Exhibit 15). She identified the appellants and the bag which
contained the dead body, in the court. She also stated that the father
of the victim identified his son through photographs. She identified
her signature on the statement of the father of the victim.
35. The Judicial Magistrate was examined as PW9. She stated that
on February 29, 2016, she recorded the statement under Section 164
of the Code of Criminal Procedure of the appellant Sk. Hasina Sultana
after observing all legal formalities; in connection with Howrah GRPS
Case No. 21 of 2016 dated January 24, 2016. She proved such
statement as exhibit 8.
36. PW10 is a lady Constable of GRPS. She stated that on January
24, 2016 a bag was recovered from a compartment of Falaknama
Express which contained dead body of a child. She saw the bag on the
following day. A case was registered over the incident. PW10 further
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stated that she accompanied the investigating officer of the case and
police force to the police station where a GDE was lodged with regard
to missing of the child and his mother. Two accused persons were
arrested whom she identified in court. The lady accused was the
mother of the victim child. The accused persons were brought from
Guntur to Howrah after observing the legal formalities.
37. PW10 also stated that she had seen the CCTV footage of
Secundrabad Railway Station. It was seen in the footage that the male
accused deboarded from an Auto Rickshaw just outside the station
carrying the bag which contained something. It was the similar bag as
produced in court as Mat Exhibit 1. He was wearing the dress of a
security and he did not enter through the main gate where security
checking was in progress but he went towards the backside of the
station. Thereafter the inside CCTV footage showed that he was
entering and walking inside the station carrying the bag towards
Falaknama Express which was standing on the station. He entered
Falaknama Express with the bag and stayed inside for sometimes.
Thereafter, he came down from the train empty handed. The I'O
collected the CCTV footage during the investigation. The same was
collected from the system maintained by the RPF of Secunderabad
Railway Station; subsequently, they came back to Howrah.
38. An Assistant Sub-Inspector of police deposed as PW11. He stated
that on January 24, 2016 one bag was recovered from the
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compartment of down Falaknama Express at platform No. 22 of
Howrah railway station bearing a logo as 'Diesl Sagar'. The bag
contained naked dead body of a male child. He identified Mat. Ext. I as
the said bag which was seized under a seizure list. He proved his
signature on such seizure list as well as label attached to the seized
bag. He also identified the dead child through the photographs. PW11
also stated that a case was started over the incident. He accompanied
the investigating officer of the case and other police force to Tenali-1
police station on January 28, 2016 and reached there on January 29,
2016. On January 30, 2016 it was found that a missing diary was
lodge in respect of the child and his mother namely, Sk. Jishan and
Sk. Hasina sultana at Tenari one Town PS.
39. PW11 also stated that the police team visited the houses of the
father of the child, the complainant Rousan Bee who happens to be
grandmother of the child. She informed that her daughter had come
back and provided her address. On such information, the police team
visited the house of the mother of the victim and interrogated her. On
such interrogation, the mother of the child informed that she had left
with the other accused Vannur Sha accompanied by the victim child.
Both the accused persons i.e. the mother of victim child namely Sk.
Hasina Sultana and Vannur Sha were arrested. Their statements were
recorded. They were brought to Howrah after observing the legal
formalities.
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40. An inquest witness deposed as PW 12. He stated that on
January 24, 2016 he was travelling to Tata. At the request of the RPF
personnel, he signed on the inquest report which he proved (Ext.2/3).
41. The landlord of the convicts was examined as PW13. The witness
identified the appellants in court as the persons who were his tenants.
He stated that the appellants lived in his house for 15 days and left
without paying rent. He further stated that both of them resided with
their child. The child was later not seen by PW13. On his query, the
appellants told him that the child was sent to his grandmother's
house. He identified the child through the photographs (Ext.18) who
lived in his house with the appellants. He also stated that at the time
of induction, the appellants introduced themselves as husband and
wife but later on he came to know that the appellants were not
husband and wife. He also stated that his son Shiva used to reside
with him in the house a portion of which was let out to the appellants.
42. The grandmother of the victim child deposed as PW14. She
identified the appellants in court. She stated that her daughter,
Hasina Sultana was first married to one Riyaz. While she was
pregnant, matrimonial disputes between them arose and the appellant
Hasina Sultana started staying with her where she gave birth to a
male child. PW14 also stated that when the appellant Hasina Sultana
left her house she was again pregnant from her second husband i.e.
the other appellant Vannur Sha. She further stated that her daughter
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Hasina and her son went missing from her house whereupon she had
reported the incident to the police. Her house was under the
jurisdiction of Tenali-1 Town P.S. She had provided the photograph of
her daughter Hasina and her son to the police so that they could trace
them out. She identified her signature on the complaint lodged by her.
She also stated that thereafter, she did not see her son. She had been
to police station where she was interrogated. She was shown the
photographs of the dead body of her grandson by police and she
identified him through the photographs.
43. The investigating officer deposed as PW15. He identified the
written complaint (Ext.1/1) and the formal First Information Report
(Ext.19). Being endorsed with the investigation of the case, he visited
the place of occurrence, prepared rough sketch map thereof with index
and recorded statement of the available witnesses. He has described
the various steps taken by him in course of investigation of the case.
He seized the bag containing the dead body. He also went to Tenali-1
Police Station within Guntur district recorded the statement of
witnesses, arrested the appellants, seized several documents as well
as empty stripe of Cetrizine tablets and arranged for recording
statement of the witnesses as well as that of appellant Hasina Sultana
under Section 164 of the Code of Criminal Procedure. He also sent
requisition for providing the CCTV footage of platform No. 1 of
Secundrabad railway station and collected such footage in a compact
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disc. He also collected the post mortem report. On completion of
investigation, PW15 submitted charge sheet in the case. He identified
the appellants in court.
44. Upon conclusion of the evidence of the prosecution, the
appellants were examined in terms of Section 313 of the Code of
Criminal Procedure. In such examination, the appellants pleaded
innocence and denied having been connected with the offence.
Appellant Hasina Sultana also stated in her examination under
Section 313 of the Code of Criminal Procedure that she recorded her
statement under Section 164 of the Code of Criminal Procedure as per
the instructions and dictates of police. They however, declined to
adduce any defence witness.
45. From the evidence led at the trial, it transpires that on January
24, 2016, a bag was recovered from inside the compartment of Dn.
Falaknama Express standing on platform No. 22 of Howrah railway
station. The bag was noticed by the key man. He informed of the said
bag to the Station Manager and in turn, it was reported to the
Government Railway Police Station, Howrah. PW2 has testified that he
received information of the presence of a bag inside the train and
being so informed, he issued a memo in this regard to the GRPS. PW1
has affirmed that a memo was received by the GRPS and on the basis
of such memo, he attended platform No. 22. PW1 has also testified
that upon reaching the spot accompanied by other police personnel
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and Doms, he made the bag brought out. Upon opening the bag, it
was found to contain naked dead body of a male child. Such recovery
of dead body has been corroborated by PW4, PW5 and PW7.
46. PW1 conducted inquest over the dead body and thereafter,
lodged a written complaint over the incident with the GRPS resulting
in a specific case. The dead body was sent for post mortem
examination.
47. The autopsy surgeon was examined as PW3. Upon conducting
the post mortem examination over the dead body, PW3 found several
injuries on the dead body namely,
i. "Bruise over the right cheek;
ii. bruise on the entire anterior right arm; fracture of the right
humerus at the lower end;
iii. bruises on the two lips; bruise on the left cheek;
iv. piecemeal fracture of the left humerus with surrounding
bruises;
v. 6 nail scratches abrasion on the right anterior lower neck;
vi. bruise on the mid-upper back;
vii. abrasion of mid-sacral back;
viii. bruise of right posterior neck one inch below right mastoid
tip;
ix. bruise on the right posterior elbow; scalp haematoma over
the mid frontal scalp and sub-dural and extra-dural
haemorrhage of both cerebral hemisphere along with
bases."
48. PW3 prepared a report which he proved as Exhibit 7. Upon
conclusion of the post mortem examination, PW3 opined that the
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death of the victim was caused due to the effect of aforementioned
injuries which were ante-mortem and homicidal in nature. According
to PW3, the injuries found on the dead body showed vital reaction.
Therefore, in view of the testimonies of PWs 1, 4, 5, and 7 together
with that of PW3, it is evident that the victim child suffered an
unnatural death.
49. So far as the person responsible for inflicting the fatal injuries
upon the person of the victim is concerned, it is the case of the
prosecution that the appellant Hasina Sultana happens to be the
mother of the victim. She was married to one Riyaz and out of such
wedlock the victim was born. However, the matrimonial relations
between appellant Hasina Sultana and her husband went strained.
She left her matrimonial house and started residing with her mother,
PW14, where she gave birth to the victim. PW14 further stated in her
deposition that, appellant Hasina Sultana, later, married the other
appellant Sk. Vannur Sha and became pregnant out of such wedlock
while still residing at her mother's house. However, the landlord,
PW13, stated that while the two appellants were residing at his house,
although, at the time of induction, they introduced themselves as
husband and wife but later he came to know that they were not
married.
50. Appellant Hasina Sultana, all of a sudden, went missing from
the house of her mother with the victim child. PW14, her mother
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lodged a complaint over the issue which resulted in a specific case
registered at Tenali-1 Police Station. Such complaint lodged by PW14
was produced in this case (Ext. 11 series). After the instant case
initiated, the investigating officer visited Tenali-1 PS and the house of
PW14 and came to know of the complaint lodged by PW14. In course
of investigation, it came out that the appellant Hasina Sultana eloped
from the house of her mother accompanied by the victim child with
the other appellant Sk. Vannur Sha and started residing at the house
of PW13 on rent. Although, a question has been raised by the
appellants that PW13 has not produced any document to establish
that the appellants resided at his house as tenants but PW13 has
come up with a definite case that the appellants left his house without
paying rent thereof. Moreover, the defence has not been able to
dislodge the testimony of PW13 in his cross-examination.
51. PW13 has testified that the two appellants stayed at his house
on rent for 15 days and thereafter they left the house without paying
rent. PW13 also confirmed in his deposition that the two appellants
lived at his house with the victim child whom he identified through
photographs. He also stated that when he did not see the child later,
he enquired from the appellants about the child. On his query, the
appellants told PW13 that the child was sent to his grandmother's
house. We have noted that the grandmother lodged a missing
complaint in respect of her daughter i.e. appellant Hasina Sultana and
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her child. She, in her statement, categorically stated that she did not
see the victim child after she lodged the missing complaint. It has also
come out in evidence that in course of investigation, PW14 had
informed the police that her daughter had returned but the victim
child was not with her.
52. It is not disputed that PW14 informed the police that her
daughter had returned without the victim child, the appellant Hasina
Sultana was interrogated by police and on her leading statement
which disclosed the address of the other appellant Sk. Vannur Sha, he
was also interrogated. Following such interrogation, the two appellants
were arrested.
53. PW10 had stated that she had seen the CCTV footage of
Secundrabad railway station and that it was seen from the footage
that the male accused deboarded from an Auto Rickshaw just outside
the station carrying the bag which contained something. It was the
similar bag as produced in court as Mat Exhibit 1. He was wearing the
dress of a security and he did not enter through the main gate where
security checking was in progress. Rather, he went towards the
backside of the station. Thereafter, the inside CCTV footage showed
that he was entering and walking inside the station carrying the bag
towards Falaknama Express which was standing on the station. He
entered Falaknama Express with the bag and stayed inside for
sometimes. Thereafter he came down from the train empty handed.
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The Investigating Officer collected the CCTV footage during the
investigation. The same was collected from the system maintained by
the RPF of Secunderabad Railway Station; subsequently, they came
back to Howrah.
54. Admissibility of the CCTV footage was challenged on behalf of
the appellants as it was not supported by the requisite certificate
under Section 65B (4) of the Indian Evidence Act, 1872. However, the
evidence led at the trial goes to show that a compact disc containing
the CCTV footage of Secundrabad railway station was admitted in
evidence and marked as Mat. Exhibit II. Contents of such compact
disc were not proved and were not supported by a certificate under
Section 65B of the Indian Evidence Act. PW10, in her deposition,
described the contents of such compact disc. Since the compact disc
is not supported by the requisite certificate and its contents have not
been proved, we are not minded to rely upon such part of the
testimony of PW10 or Mat. Exhibit II.
55. Nevertheless, evidence of PW14 establishes that the victim left
her house in the company of appellant Hasina Sultana. PW13 testified
that the two appellants stayed at his house with the victim child as
tenants and left after 15 days. Not only that, PW13 also stated that
when he did not see the child later on, he enquired about him from
the appellants who informed him that the victim was sent to his
grandmother. Such evidence establishes that the victim was last seen
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alive with the two appellants and thereafter he disappeared, allegedly
sent to the house of PW14. PW14 in her deposition stated that she last
saw the victim alive when the appellant Hasina Sultana eloped from
her house. She also reported the said appellant returned to her house
without the victim child. In that view of the facts, the appellants were
under obligation to explain the whereabouts of the victim child, since
he was last seen living in the company of the two appellants. The
appellants have not endeavoured to discharge such obligation in terms
of Section 106 of the Indian Evidence Act, which necessarily entails an
adverse inference.
56. At the same time, the appellants have also challenged the proof
of the photographs of the victim. The victim is alleged to have been
identified by the witnesses at trial through such photographs. PW14 in
her examination has stated that she provided the photograph of the
victim and the appellant Hasina Sultana to the police while lodging the
missing complaint. Later on, photographs of the dead body of the
victim was taken by police when it was discovered from inside a bag
kept in a train at Howrah railway station.
57. In Nasir Mallick (supra), a Coordinate Bench held that,
"38. In this regard, however, it is not out of place to mention that
the trial Court was also mislead by Exbt.1. The photograph has
been allowed to be marked as an exhibit, is not very happy way
of admitting a document as per Evidence Act. According to
Evidence Act a document which is not admissible in evidence
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cannot be marked as an exhibit. In this case the photograph has
been taken on record without calling for the negative and without
getting the person who took this snap examined. Therefore, this
part of the evidence cannot be held material for the purpose of
any proof, the Trial Court mislead itself in relying upon Exbt.1."
59. However, independent of the proof of the photographs, we have
noted hereinabove, that the victim was last seen alive in the company
of the two appellants and the appellants have not been able to explain
the circumstances under which such victim went out of their company
and was found dead.
60. The appellants further raised a point that a confessional
statement was recorded by appellant Hasina Sultana under Section
164 of the Code of Criminal Procedure. Later, at the time of her
examination under Section 313 of the Code of Criminal Procedure, she
made out a case that such confessional statement was recorded by her
under duress being tutored by police. It was contended that such
confessional statement cannot be used against its maker as it was
made under the dictates of police officer and the maker thereof
retracted from it. At the same time, it cannot be used as against the
other appellant without the prosecution bringing out some primary
evidence. Moreover, it was contended on behalf of the other appellant,
Sk. Vannur Sha that he was not confronted with such confessional
statement in his examination under Section 313 of the Code of
Criminal Procedure.
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61. In Kashmira Singh (supra) it was noted that,
"Then, as regards its use in the corroboration of accomplices and
approvers. A co-accused who confesses is naturally an
accomplice and the danger of using the testimony of one
accomplice to corroborate another has repeatedly been pointed
out. The danger is in no way lessened when the "evidence" is not
on oath and cannot be tested by cross-examination. Prudence
will dictate the same rule of caution in the case of a witness who
though not an accomplice is regarded by the Judge as having no
greater probative value."
62. Similarly in Prakash Kumar (supra), the Hon'ble Supreme
Court observed to the following that,
"7. The prosecution could not adduce any other supporting
evidence to prove the guilt of the appellant. Even based on the
confession of the co-accused, the only allegation against the
appellant is that he was in the company of the other co-accused
and had pointed out towards the victim by making a sign
whereupon the other accused overpowered the victim and took
him forcibly in the Maruti van. To prove that the appellant was in
the company of other accused, there is no other independent
evidence. Even though the prosecution adduced other evidence to
prove that the victim Babulal Misrimal Jain was forcibly taken
and kept in unlawful custody, the complicity of the appellant
could not be proved. The prosecution has failed to prove the case
against the appellant."
63. However, in the case at hand, independent of an alleged
retracted confessional statement by one of the appellants, the
appellants have failed to discharge their onus in terms of Section 106
of the Indian Evidence Act, to explain the circumstances under which
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the victim suffered an unnatural death living in the company of the
appellants. The evidence on records has sufficiently established that
the victim was in the company of the appellants reasonably prior to
his death.
64. The appellants have argued that PW13 had stated that her son,
Shiva used to reside with him in the same house, a portion of which
was let out to the appellants on rent. Such son of PW13 was not
examined by prosecution as a witness. It has also been contended that
the friend who arranged for the tenanted house for the appellants was
not examined by the prosecution. In Habeeb Mohd. (supra), the
Hon'ble Supreme Court observed that,
"13. In this situation it seems to us that Biabani who was a top
ranking police officer present at the scene was a material witness
in the case and it was the bounden duty of the prosecution to
examine him, particularly when no allegation was made that if
produced, he would not speak the truth; and, in any case, the
court would have been well advised to exercise its discretionary
powers to examine that witness. The witness was at the time of
the trial in charge of the Police Training School and was certainly
available. In our opinion, not only does an adverse inference
arise against the prosecution case from his non-production as a
witness in view of Illustration (g) to Section 114 of the Evidence
Act, but the circumstance of his being withheld from the court
casts a serious reflection on the fairness of the trial. It seems to
us that the appellant was considerably prejudiced in his defence
by reason of this omission on the part of the prosecution and on
the part of the court. The reasons given by the learned Judge for
refusing to summon Biabani do not show that the Judge
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seriously applied his mind either to the provisions of the section
or to the effects of omitting to examine such an important
witness. The terms in which the order of the Special Judge is
couched exhibit lack of judicial balance in a matter which
required serious consideration."
65. In the instant case, however, the son of PW13 cannot be
considered as vital a witness as that was held in Habeeb Mohd.
(supra). PW13 did approbate that the two appellants stayed in his
house for 15 days on rent with the victim child. The son of PW13
could only be examined for the purpose of corroborating the testimony
of PW13 and nothing more. The appellants had the opportunity of
cross examining PW13 which they availed. In his deposition, PW13
has not described any person at whose instance; he inducted the
appellants in his house. Therefore, non-examination of any such
person or the son of PW13 or the father of the victim cannot, at any
stretch, be termed as withholding of vital witnesses by the
prosecution.
66. The investigating officer, seized photocopy of the birth certificate
of the victim from PW14. It was contended on behalf of the appellants
that photocopy of a document could not have been admitted in
evidence. The authority in Ashok Dulichand (supra) as well as in U.
Sree (supra), the Hon'ble Supreme Court on the basis of the facts and
circumstances obtaining in the case and laid down the principles for
leading secondary evidence in terms of the provisions of Section 65 of
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Indian Evidence Act. However, in the present case, although,
photocopy of the birth certificate was seized by police but such
certificate has no bearing on the merits of the case. Independent of
such certificate, it was established that the victim child was the son of
the appellant Hasina Sultana which has not been denied. The child at
first went missing from the house of his grandmother with such
appellant and thereafter was removed from the custody of appellant
Hasina Sultana and was ultimately found dead. In such
circumstances, we do not think, the birth certificate of the victim child
has any relevance and therefore, the ratio laid down in Ashok
Dulichand (supra) and U. Sree (supra) has no manner of application
in the facts and circumstances of the present case.
67. In Devendra Prasad Tiwari (supra), the Hon'ble Supreme
Court laid down that,
"13. It is true that there is no direct evidence regarding
commission of the aforesaid offence by the appellant and the
prosecution case rests entirely on circumstantial evidence. It is
also true that before a confessional statement made under
Section 164 of the Code of Criminal Procedure can be acted upon,
it must be shown to be voluntary and free from police influence
and that the confessional statement made by the appellant in the
instant case cannot be taken into account, as it suffers from
serious infirmities in that (1) there is no contemporaneous record
to show that the appellant was actually kept in jail as ordered on
September 6, 1974 by Shri R.P. Singh, Judicial Magistrate,
Gorakhpur, (2) Shri R.P. Singh who recorded the so called
confessional statement of the appellant did not question him as to
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why he was making the confession and (3) there is also nothing
in the statement of the said Magistrate to show that he told the
appellant that he would not be remanded to the police lock-up
even if he did not confess his guilt. It cannot also be gainsaid that
the circumstantial evidence relied upon by the prosecution must
be complete and incapable of explanation of any other hypothesis
than that of the guilt of the accused."
68. Similarly, in the case of Shivappa (supra), the principles of
reliability of a confessional statement was observed to the effect that,
"8. From a perusal of the evidence of PW 17, Shri Shitappa,
Additional Munsif Magistrate, we find that though he had
administered the caution to the appellant that he was not bound
to make a statement and that if he did make a statement that
may be used against him as evidence but PW 17 did not disclose
to the appellant that he was a Magistrate and that the confession
was being recorded by him in that capacity nor made any
enquiry to find out whether he had been influenced by anyone to
make the confession. PW 17 stated during his deposition in court:
"I have not stated to the accused that I am a Magistrate" and
further admitted: "I have not asked the accused as to whether
the police have induced them (Chithavani) to give the statement."
The Magistrate, PW 17 also admitted that "at the time of
recording the statement of the accused no police or police officials
were in the open court. I cannot tell as to whether the police or
police officials were present in the vicinity of the court". From the
memorandum prepared by the Munsif Magistrate, PW 17 as also
from his deposition recorded in court it is further revealed that the
Magistrate did not lend any assurance to the appellant that he
would not be sent back to the police custody in case he did not
make the confessional statement. Circle Police Inspector
Shivappa Shanwar, PW 25 admitted that the sub-jail, the office of
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the Circle Police Inspector and the police station are situated in
the same premises. No contemporaneous record has been placed
on the record to show that the appellant had actually been kept
in the sub-jail, as ordered by the Magistrate on 21-7-1986 and
that he was out of the zone of influence by the police keeping in
view the location of the sub-jail and the police station. The
prosecution did not lead any evidence to show that any jail
authority actually produced the appellant on 22-7-1986 before
the Magistrate. That apart, neither on 21-7-1986 nor on 22-7-
1986 did the Munsif Magistrate, PW 17 question the appellant as
to why he wanted to make the confession or as to what had
prompted him to make the confession. It appears to us quite
obvious that the Munsif Magistrate, PW 17 did not make any
serious attempt to ascertain the voluntary character of the
confessional statement. The failure of the Magistrate to make a
real endeavour to ascertain the voluntary character of the
confession, impels us to hold that the evidence on the record does
not establish that the confessional statement of the appellant
recorded under Section 164 CrPC was voluntary. The cryptic
manner of holding the enquiry to ascertain the voluntary nature
of the confession has left much to be desired and has detracted
materially from the evidentiary value of the confessional
statement. It would, thus, neither be prudent nor safe to act upon
the confessional statement of the appellant. Under these
circumstances, the confessional statement was required to be
ruled out of consideration to determine the guilt of the appellant.
Both the trial court and the High Court, which convicted the
appellant only on the basis of the so-called confessional
statement of the appellant, fell in complete error in placing
reliance upon that statement and convicting the appellant on the
basis thereof. Since, the confessional statement of the appellant
is the only piece of evidence relied upon by the prosecution to
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connect the appellant with the crime, his conviction cannot be
sustained."
69. In the case before us, however, we do not propose to proceed on
the basis of confessional statement of appellant Hasina Sultana. The
case is entirely based on circumstantial evidence. The victim child was
last seen alive in the company of the appellants and the appellants
have not attempted to explain the circumstances under which the
victim child suffered an unnatural death while in their company.
70. The appellants have come up with a case that the offence,
according to the case made out by the prosecution, was allegedly
committed within the territorial limits of Secundrabad and as such, a
court at Howrah had no jurisdiction to try the offence. For such
reason, according to appellants, the trial is vitiated for want of proper
territorial jurisdiction and consequently, the impugned judgment of
conviction and order of sentence are bad in law. CHAPTER XIII of the
Code of Criminal Procedure, 1973 deals with the jurisdiction of the
criminal courts in enquiries and trials. We deem it appropriate to set
out the provisions of Sections 177, 178 and 179 of the Code of 1973
which defines the ordinary jurisdiction of the court empowered to
enquire or try an offence.
"177. Ordinary place of inquiry and trial.--Every offence
shall ordinarily be inquired into and tried by a Court
within whose local jurisdiction it was committed.
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178. Place of inquiry or trial.--(a) When it is uncertain in
which of several local areas an offence was committed, or
(b) where an offence is committed partly in one local area
and partly in another, or
(c) where an offence is a continuing one, and continues to
be committed in more local areas than one, or
(d) where it consists of several acts done in different local
areas,
it may be inquired into or tried by a Court having
jurisdiction over any of such local areas.
179. Offence triable where act is done or consequence
ensues.--When an act is an offence by reason of anything
which has been done and of a consequence which has
ensued, the offence may be inquired into or tried by a Court
within whose local jurisdiction such thing has been done or
such consequence has ensued."
.
71. In the case in hand, the appellants were convicted and
sentenced for the offences punishable under Section 302/201/34 of
the Indian Penal Code, 1860. According to the case made out by the
prosecution, the appellants committed murder of the victim child in
Secundrabad and with a view to cause disappearance of the evidence,
packed the dead body in a bag and put the same in a train. The bag
containing the dead body of the child was ultimately, recovered from
the said train at Howrah railway station, resulting in the initiation of a
case. The facts and circumstances of the case straightaway render the
case triable by the court at Howrah in accordance with the provisions
of Section 178 and 179 of the Code of 1973. In that view of the facts,
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the objection raised on behalf of the appellants with regard to
territorial jurisdiction of the court at Howrah to try such case has no
legs to stand.
72. Therefore, in view of the discussions made hereinbefore, we find
no substance to interfere with the findings of the learned trial court in
so far as it relates to the conviction of the appellants for the offences
punishable under Sections 302/201/34 of the Indian Penal Code. We
affirm the impugned judgment of conviction.
73. So far as the impugned order of sentence is concerned, the
appellants were sentenced to death penalty for the offence punishable
under Section 302 of the Code of 1860. In course of hearing of the
death reference and the connected appeals, we called for psychological
evaluation report as well as socio-economic background assessment
report from the state in respect of the appellants.
74. As per the psychological evaluation report, the appellant Sk.
Vannur Sha is aged about 37 years and studied up to Class IX. On
examination he was found kempt and tidy. The attitude towards the
examiner was cooperative. Motor behaviour was within normal limits.
His speech was spontaneous and goal-directed. Orientation to time,
place and person was intact. General intelligence was found to be of
average level. Objective affect was stable, appropriate, communicable,
and reactive to stimulus with adequate range. Thought and perception
was within normal limits. Such Findings suggested average level of
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current intellectual functioning present. The psychological evaluation
report in respect of the other appellant Sk. Hasina Sultana disclosed
that there was no psychopathology detected in her and she was fit
from psychological point of view.
75. The socio-economic assessment report in respect of Sk. Vannur
Sha shows that the said appellant has his parents. The parents of the
said appellant are illiterate and unable to maintain themselves. They
are totally dependent upon the State Government old age pension.
Besides himself, the appellant Sk. Vannur Sha had another brother
who is absconded. According to such report there is no criminal
antecedent of the appellant.
76. As regards as the other appellant Sk. Hasina Sultana, she is 34
years of age. Her father was a State vendor and has already expired.
Her mother is about 67 years of age. The said appellant abandoned
her husband. She studied upto intermediate. The report also states
that there was no previous criminal antecedent of such appellant.
77. On consideration of the psychological report as well as socio-
economic assessment report of the appellants goes to show that the
appellants come from a very poor economical as well as educational
background. No previous criminal antecedent has been reported
against them. There is nothing adverse on record to establish any
violent or bad behaviour of the appellants in the correctional home
where they are presently lodged.
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78. As regards the quantum of punishment, specially imposing of
death penalty upon the appellants, various pronouncement by Hon’ble
Supreme Court has laid down that death penalty should be resorted to
in exceptional circumstances where the court awarding the sentence is
able to return a finding that the case fell within the category of ‘rarest
of rare cases’ and the possibility of reformation of the convict stood
foreclosed. In order to hold a case as ‘rarest of rare case’ the Hon’ble
Supreme Court has ordained to evaluate the circumstances on the
parameters of ‘aggravating circumstances’ and ‘mitigating
circumstances’. That apart, in a case of murder, it is to be conclusively
evaluated that the offence was committed in a manner which can be
termed as cold blooded. At the same time, age of the convict is also
relevant factor to be considered for awarding such punishment. The
Hon’ble Supreme Court has noted time and again that a convict, too
young or too old, should not be awarded with death penalty. In the
facts and circumstances of the case, we are not in a position to arrive
at a definite finding that any punishment other than death penalty
would be insufficient and possibility of such punishment is totally
foreclosed.
79. Therefore, taking into consideration the entire facts and
circumstances of the case discussed hereinbefore, we are minded to
commute the death sentence awarded to the appellants into one of life
imprisonment. However, considering the age of the appellant as well
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as other circumstances obtaining from the facts of the case, the
imprisonment of life, so awarded to the appellant, shall mean
imprisonment for life without remission until 40 years from the date of
their arrest. The sentence awarded to the appellants for the offence
punishable under Section 201/34 of the Indian Penal Code, however,
stands affirmed. Both the sentences shall run concurrently.
80. Consequently, Death Reference No. 1 of 2024 along with the
appeals being C.R.A. (DB) 71 of 2024 and C.R.A. (DB) 114 of 2024 are,
accordingly, disposed of.
81. A copy of this judgment along with the Trial Court records be
remitted to the appropriate Trial Court forthwith. In view of the
commutation of the death penalty of Sk. Vannur Sha and Sk. Hasina
Sultana, any warrant issued by the appropriate Court with regard
thereto in respect of Sk. Vannur Sha and Sk. Hasina Sultana stands
modified in terms of this judgment and order. Department will inform
the Correctional Home, where the appellant is lodged, as to this
judgment and order. The Correctional Home will record the fact of
commutation of death penalty to the sentence awarded by this
judgment and order in respect of Sk. Vannur Sha and Sk. Hasina
Sultana, in their records.
82. Period of detention already undergone by the appellants shall be
set off against the substantive punishments in terms of the provisions
contained in Section 428 of the Code of Criminal Procedure.
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83. Urgent Photostat certified copy of this judgment, if applied for,
be supplied to the parties on priority basis upon compliance of all
formalities.
[MD. SHABBAR RASHIDI, J.]
84. I agree.
[DEBANGSU BASAK, J.]
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