Calcutta High Court (Appellete Side)
State Of West Bengal vs Suresh Paswan on 17 June, 2025
Author: Debangsu Basak
Bench: Debangsu Basak
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. 02 of 2019
STATE OF WEST BENGAL ... APPELLANT
Vs.
SURESH PASWAN ... RESPONDENT
With
C.R.A. 384 of 2019
SURESH PASWAN … APPELLANT
Vs.
STATE OF WEST BENGAL … RESPONDENT
For the Appellant : Mr. Kallol Mondal, Sr. Adv.
Mr. Krishan Ray, Adv.
Mr. Souvik Das, Adv.
Mr. Anamitra Banerjee, Adv.
Ms. Isita Kundu, Adv.
Mr. Akbar Laskar, Adv.
For the State : Mr. Debasish Roy, Ld. P.P.
Mrs. Trina Mitra, Adv.
Mr. Antarikha Basu, Adv.
Hearing Concluded on : May 16, 2025
Judgment on : June 17, 2025
sk sohel Digitally signed by
sk sohel uddin
uddin Date: 2025.06.17
11:59:31 +05'30'
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MD. SHABBAR RASHIDI, J.:-
1. The Death Reference and the Appeal are in assailment of
judgment of conviction dated March 26, 2019 and order of sentence
dated March 28, 2019 passed learned Chief Judge, City Sessions Court,
Calcutta, in connection with Sessions Trial No. 1 (4) of 2014
corresponding to Sessions Case No. 115 of 2013.
2. By the impugned judgment and order, the appellant was
convicted for the offences punishable under Sections 364/376A/302 of
the Indian Penal Code, 1860 as well as Section 6 of Protection of
Children from Sexual Offences Act, 2012. He was sentenced to suffer
imprisonment of death for the offence punishable under Section 302 of
Indian Penal Code. He was also sentenced to suffer Rigorous
Imprisonment of 8 years and a fine of ₹5,000/- for the offence punishable
under Section 364 of the Indian Penal Code. In default of payment of
fine, the convict was directed to undergo a further imprisonment of 2
years. The convict was further sentenced to suffer rigorous imprisonment
of 20 years and a fine of ₹50,000/- and in default of payment of such fine
to undergo rigorous imprisonment for a further period of 5 years for the
offence punishable under Section 376A of the Code of 1860. The convict
was also sentenced to rigorous imprisonment for 8 years and a fine of
₹5,000/- for the offence punishable under Section 6 of the Protection of
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Children from Sexual Offences Act, 2012 and in default of payment of
fine, the convict was to undergo a further imprisonment of 2 years. All
the sentences were directed to run concurrently.
3. It has been submitted on behalf of the appellant/convict that
the prosecution has not been bring any eyewitness to the incident. The
case is completely based on circumstantial evident. The chain of
circumstances has not been proved by the prosecution to be complete so
as to draw an inference that the incident must have been perpetrated by
none other than the convict alone. There are material contradictions in
the testimonies of the prosecution witnesses.
4. It was further contended by learned Senior Advocate for the
appellant that the testimony of PW6 and PW7 are wholly unreliable. They
claimed to have identified the victim as well as the appellant even under
insufficient light and visibility. Learned Senior Advocate also termed the
action on the part of such witnesses in appearing voluntarily before the
police and linking their sighting the victim with the recovery of the child
victim as unnatural, motivated and tutored. According to learned Senior
Advocate for the appellant, such an action on the part of prosecution is
an attempt to falsely implicate the appellant in the case based on
manipulated witnesses. A normal human being cannot, with only one
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sight, remember the detailed account as given by such witnesses at the
trial.
5. Learned Senior Advocate for the appellant also submitted that
the recovery of wearing apparel of the victim at the behest of the
appellant is also suspicious as there was no report of such missing
garments in the first information report nor in the evidence of PW 3 i.e.
the grandmother of the victim. Learned Senior Advocate for the appellant
also stated that PW 8 and PW 9 are stock witnesses. They have deposed
for the police in many other cases and as such their testimony is not at
all trustworthy. Similarly, according to learned Senior Advocate for the
appellant, PW 10 and PW 11 were claimed to be the employees of Royal
Calcutta Turf Club but the prosecution has not produced any document
in support of such employment. In that view of the fact their presence at
the relevant point of time is suspect. Such witnesses could not have been
relied upon to secure conviction of the appellant.
6. Learned Senior Advocate for the appellant also submitted that
the evidence of the medical officer who first examined the victim, PW 14,
did not find any injury on the lower part of the body of the victim. The
Forensic Science Laboratory also did not find any mark of violence or of
forcible intercourse on the wearing apparel of the victim. In such view of
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the matter conviction of the appellant for sexual offence cannot be
sustained.
7. Learned Senior Advocate for the appellant also submitted that
the alleged extra judicial confession allegedly made by the appellant is
not admissible and cannot be relied to convict him. Moreover, as argued
by learned Senior Advocate, the investigation of the case was
perfunctory. There are material contradictions in the testimony of
prosecution witnesses.
8. On the other hand, learned Public Prosecutor for the State
submitted that the prosecution has been able to prove the case made out
by the prosecution with the help of cogent and convincing evidence. He
supported the impugned conviction and sentenced imposed upon the
appellant. He has submitted that the learned trial court was quite
justified in awarding death sentence upon the appellant.
9. One Nayan Sardar made a statement before police on July 21,
2013 to the effect that she along with her family used to reside at
footpath beneath a flyover at Khidderpore. One of her daughters
Priyanka Bairagi, who has been abandoned by her husband and she also
met a railway accident, also resided with her children in the company of
the informant. The informant used to beg and sold old plastic bottles
whereas her husband used to work as labourer.
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10. She further stated that on July 20, 2013 the family, after having
dinner, slept at their place under the ramp at about 10.00 p.m. Since her
daughter Priyanka was mentally challenged, the informant slept with her
grandchildren. At about 12.00/12.30 a.m. she woke up by the sounds of
shouting from the side of ‘mazar’ and went asleep thereafter. Again at
about 2.00 a.m. she again woke up to feed milk to the babies and found
her granddaughter Victim missing. She then called her husband, other
members of the family as well as other dwellers there and all of them
started searching for the child from Khidderpore to Victoria but she
could not be found.
11. The informant further stated that one Sultan informed her that
the appellant was found peeping inside his room at about 12.00/12.30
a.m. whereupon Sultan chased him. He fled away and came toward the
dwelling of the informant. She also stated that the statement of Sultan
was supported by one watchman at Khidderpore gate of Race Course. He
also stated that he saw the appellant moving beside her verandah at late
night. The informant also stated that at about 2.30 she saw the appellant
wearing a check shirt and black pant, his legs stained with mud along
the tram line moving from the side of Fort William. Seeing the people
gathered, he tried to flee away back from the direction he was coming,
when one of slum dwellers Sahid chased and apprehended the appellant.
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On enquiry the appellant stated that he used to reside at 2, Bakery Road,
Kolkata-22 and that he was returning to the stable as he was sleeping in
the fields of Ladies Golf Club. He expressed his ignorance of the
granddaughter of the informant. Believing his statements the appellant
was let go.
12. The informant further stated that she remembered that on July
21, 2013 at about 5.00/6.00 p.m. the appellant came to her verandah,
played with the child Victim and tried to take her nearby for giving
sweets but the informant forbade her. It was also stated by the informant
that on the following morning at about 6.15 a.m. some children of her
slum area namely Ratna Ghorai, Irfan, Toofan and others went to Ladies
Golf Club towards Victoria Memorial to collect food given by some
Marwari gentleman. They spotted the granddaughter of the informant
lying dead in a drain beside the wall of race course. Hearing such
information, she along with others went to the spot and the dead body of
Victim wearing a frock lying beside the drain. A veil was also found lying
beside her dead body. There was bleeding from nose, ears and private
organs of her granddaughter with marks of injury on the chin, head and
other parts of her body. The dead body was brought back to the
residence of the informant. Police was informed and thereafter, police
took the dead body accompanied by the family members to P.G. Hospital
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where she was declared dead. She also stated that the appellant
abducted and killed her granddaughter after sexually exploiting her.
13. On the basis of such information reduced into writing, Hastings
Police Station Case No. 208 dated July 21, 2013 under Sections
363/364/376/302 of the Indian Penal Code and Section 4 of Prevention
of Children from Sexual Offences Act was started against the appellant.
14. The police took up investigation and on conclusion of such
investigation, submitted charge sheet in the case. Accordingly on the
basis of materials in the case diary, charges under Sections
364/376A/302 of the Indian Penal Code, 1860 as well as Section 6 of the
Prevention of Children from Sexual Offences Act, 2012 were framed
against the appellant on April 9, 2014. The appellant pleaded not guilty
and claimed to stand trial for such offences.
15. In order to bring home the charges, prosecution examined as
many as 32 witnesses in all. In addition, the prosecution also relied upon
certain documentary as well as material evidences.
16. A police constable deposed as PW1. He stated that on July 21,
2013 he accompanied the investigating officer of this case to SSKM
Hospital morgue. As per the instructions of the investigating officer, he
took photographs of the dead body of a minor female child through his
official camera. Thereafter, he accompanied the investigating officer to
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the place of occurrence near Race Course and Hastings flyover. There
also he took some photographs of the place of occurrence as well as the
place under the flyover where the victim resided as instructed by the
investigating officer. He developed the photographs in the official dark
room. He proved the said photographs at the trial as Material Exhibits
and his signatures thereon.
17. A Sub-inspector of police attached to Plan Making Section of
Detective Department of Lalbazar was examined as PW2. He stated that
on July 25, 2013 at the directions of the Officer-in-Charge, Plan Making
Section, he accompanied Sub-inspector Chinmoy Banerjee of Homicide
Section, Lalbazar near Hastings flyover and prepared rough sketch map
of the place of occurrence in connection with Hastings PS Case No. 208
dated July 21, 2013. On the basis of such rough sketch map, he also
prepared the final sketch map. He proved such sketch maps prepared in
his pen and signature.
18. The informant of the case deposed as PW3. She reiterated her
statement made in the First Information Report. She stated gave the
details of her family and present residence. She further stated that last
year (from June 19, 2014) at about 10.00/10.30 p.m. she went to sleep
after taking dinner beneath the Hastings flyover. In the midnight, she
woke up hearing sounds of hue and cry from the side of ‘Mazar’ situated
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at Hastings but she did not find anything and thereafter, she again went
asleep along with her children and grandchildren. When she again woke
up to feed milk to her grand-daughter Victim, she could not find her. She
started searching for the child and crying. Hearing her cries, the other
dwellers of the slum also started searching for the granddaughter of PW3
towards Victoria Memorial and Khidderpore Bridge.
19. PW3 also stated that one Sultan, a local resident told her that
he saw a person roaming around the slum area beneath the Hastings
flyover. He also reported that he chased such person who fled away
towards the slum where PW 3 resided. Another local Parbati and a gate
keeper of Race Course also reported PW 3 that at about 2.30 a.m. they
saw one person roaming near the slum of PW 3. One local resident Sahid
reported PW3 that he saw a person coming towards the flyover and
seeing the people gathered, he started fleeing away. Sahid chased and
apprehended him. The apprehended person was brought before the
assembled crowd and was identified by Sahid and Sultan. The said
person identified himself as Suresh Paswan, the appellant.
20. PW3 further stated that on her queries, the said person showed
his ignorance about the missing child or anybody carrying her. About his
presence at late night, the appellant also disclosed before PW 3 that he
fell asleep at Victoria and that after waking up, he was going to his
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residence at 2, Bakery Lane, Hastings. PW 3 was further informed by
Sultan that the appellant was found peeping through his slum residence
at about 12.30 a.m. and being chased, he fled away toward the slum of
PW3. Thereafter, as the appellant showed ignorance about the girl child,
he was let go. PW3 further stated after the appellant left, she could
recollect that in the evening, she had seen the appellant calling her
granddaughter and offering sweets to her.
21. PW3 also stated that in the morning some children of her slum
who had gone to collect food at Victoria, reported her to have seen the
body of Victim in a drain of Race Course on way to Victoria. Hearing
such news, PW3 accompanied by her husband and sons went to the
place and found Victim lying dead in the drain with bleeding injuries on
her person. She lifted the body and found cut mark on her throat and
bleeding from her vagina, ears and nose. She also found finger and palm
imprint on her cheek. The body was taken to the slum where PW 3
resided. Local people informed the police and thereafter, PW 3, her
husband, son and some local people accompanied the police to PG
Hospital where the victim was declared dead on examination. PW 3 also
put her Left Thumb Impression on a medical paper. Her statement was
recorded by police in the hospital whereupon she put her Left Thumb
Impression. PW 3 identified the wearing apparel of the victim at the trial.
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She also identified the photographs of the victim and the place where the
dead body was found. She also identified the appellant in court.
22. A local witness Sk. Sultan was examined as P.W. 4. He stated
that he used to reside beneath the flyover near Syed Baba Mazar at
Hastings for last 10/12 years with his family. He further stated that on a
Sunday in the month of Ramazan at about 11/11:30 p.m. while he was
taking dinner, appellant was found peeping into his hut. He enquired
him but the appellant did not respond whereupon he drove him away
and went on to sleep. After about an hour, P.W. 4 woke up hearing cries
from the hut of one masi situated on the other side of the road below the
flyover. He went there and enquired whereupon the said masi told that
she was not finding her minor granddaughter, aged about 2½ years. P.W.
4 and others started searching for the child. The appellant was found
coming from Maidan side towards the ‘C’ gate of Racecourse near flyover.
P.W. 4 asked him whether he had seen any minor child to which he
answered in negative and started fleeing away. One Sahid who was also a
resident of the slum chased appellant and managed to apprehend him
back. P.W. 4 also stated that Daroan of the Racecourse asked him to
release the appellant as he knew him. Accordingly, P.W. 4 released the
appellant. Thereafter, P.W. 4 went to his hut and went asleep. In the
morning at about 6:00 p.m. P.W. 4 again heard hue and cries. He went to
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the jhupri of said masi who showed the minor child who was lying dead
in a naked condition. P.W. 4 also stated that he saw bleeding from the
ear, nose, mouth and other parts of the body. The dead body of the child
was taken to P.G. Hospital where doctor declared her dead. P.W. 4
identified the appellant in Court.
23. Another local resident deposed as P.W. 5. She stated that she
was residing beneath Hastings flyover near Syed Baba Mazar for the last
4 years and used to work as a sweeper under HRBC. P.W. 5 stated that
she knew P.W. 3 who also resided under the Hastings flyover near her
slum. P.W. 5 further stated that one Saturday in the month of Ramazan
about a year ago (from September 5, 2024), she had quarrel with her
husband in the night and was standing outside her slum. At about 12:00
hours in the night she saw one person roaming around the slum of P.W.
3 in the street light. She claimed that she will be able to identify that
person who was roaming near the slum of P.W. 3. She identified the
appellant as the person who was roaming near the slum of P.W. 3. P.W. 5
also stated that on that night at around 1/1:30 a.m. she heard hue and
cries outside the slum and came out. She saw P.W. 3 and many other
persons. P.W. 3 is said to have reported that she was not finding her
granddaughter. Other slum dwellers also assembled and all of them
including P.W. 5 started searching for the child. P.W. 5 also stated that
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while she along with the others were standing in front of the slum of P.W.
3, they saw one short height and fat person coming through the tram
line from Victoria side who was wearing blue coloured check shirt and
black pant. On seeing crowd, he tried to flee away but Sahid and others
apprehended and brought the said person. P.W. 5 identified the said
person in Court as the appellant. She also stated she found mud on the
shirt and pant of the appellant. On a query, the said person stated that
he had been to the field and felt asleep and after waking up he was going
to the horse stable at Hastings where he used to work. P.W. 3 also asked
him whether he had seen the granddaughter of P.W. 3 to which he
answered in negative. Thereafter, the said person was released and all
the persons including P.W. 5 who were assembled there went to their
respective residences.
24. P.W. 5 also stated that on the next morning on a Sunday at
about 6/7 a.m. she heard hue and cry and went near the slum of P.W. 3.
She found P.W. 3 crying and a number of persons assembled there. She
also saw the dead body of the victim. On her query, P.W. 3 informed her
that she found the dead body in the drain on the way to Victoria which
was first seen by the daughters of PW 5 and other children who were
going to Victoria to collect food. Thereafter, P.W. 3 went there and
brought the dead body. P.W. 5 also stated that she saw cut mark on the
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throat of the victim and bleeding from the ear, nose and her private
parts. After sometime police came and took the dead body of the victim
along with P.W. 3 and others to P.G. Hospital. P.W. 5 also identified the
photographs of the dead body and the place of occurrence.
25. P.W. 6 is a businessman. He stated that on July 20, 2013 he
was returning home on foot after watching movie and having food with
his friend. When they reached the Racecourse through Chitpur Road at
about 1/1:30 a.m. Near the Racecourse at the mouth of flyover he found
one man coming with a child in his lap. The child was asleep. P.W. 6
further stated that he crossed the man and went away who was wearing
blue check shirt and black trousers. Thereafter P.W. 5 went to his home.
He also stated that the child was wearing white and pink coloured frock
and one orna. On the next day, his friend Sarfaraz informed him that a
child was murdered and thrown in a gutter near the Racecourse. P.W. 6
went to Watgunge P.S. wherefrom he was sent to Hastings P.S. On
Hastings P.S., the police officer had shown him photo of the child in a
mobile phone to which P.W. 6 identified as the child. He saw her on the
previous night in the lap of a man. His statement was noted in a diary.
After 15-20 days P.W. 6 received a notice from the police station asking
him to go to the correctional home to identify the miscreant. P.W. 6
identified the photographs of the victim as the child he had seen. He also
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identified the photographs of place where the dead body was found and
that of the wearing apparels of the child. P.W. 6 also identified the
wearing apparels of the appellant. P.W. 6 identified the appellant in
Court.
26. A friend of P.W. 6 was examined as P.W. 7. He stated that he
was a businessman at 28, Dr. Sudhir Bose Road, Kolkata – 13. He along
with his friend P.W. 6 had gone to watch movie in the night. After
watching movie and taking food, they were returning walking towards
their home. Near the flyover at Racecourse P.W. 7 found one person
coming towards him from the opposite side having a child in his lap. The
child was wearing pink coloured frock and orna tied around her waist.
The man carrying the child was short height with a small hair and was
wearing check shirt and black trousers. P.W. 7 also stated that on the
following morning when he came out from his house, he heard a minor
girl child was lifted from the footpath, murdered and thrown near the
Racecourse. P.W. 7 made a phone call to P.W. 6 and, thereafter, both of
them went to Watgunge P.S. and narrated the incident before the police
officer. They were advised to go to Hastings P.S. In the Hastings P.S. one
police officer Saikat Neogi heard the entire incident from P.Ws. 6 and 7.
Thereafter, the officer showed him the photograph of the child in his
mobile phone which P.W. 7 identified as the child whom he saw in the
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lap of a man in the previous night. P.W. 7 also identified the victim in the
photographs (Mat Exts.- I, I/I, and I/II). He also identified the wearing
apparels of the appellant as well as that of the victim.
27. A seizure list witness deposed as P.W. 8. He stated he was a
resident of 106, Diamond Harbour Road, Khiderpore. He also stated that
about 2½ or 3 years ago (from April 26, 2016) he was going towards
Khiderpore from Babughat. Just before Khiderpore flyover, he was
requested by a police officer to be a witness in the case.
28. The appellant was also present there. P.W. 8 and his friend
Imran accompanied the police. Thereafter the police took the
apprehended person towards a garbage under the bridge followed by
P.Ws. 8 and others. The apprehended person took out one black
polythene bag from the garbage and gave it to the police officer. On
opening the said polythene bag, police found one black pant and a blue
and white jangiya which were seized by the police under a seizure list
prepared on the spot. P.W. 8 signed on the said seizure list (Ext. 7). He
proved his signature on the seizure list as well as on the label attached to
the packed (Mat. Exts. VI, VII and VII). He also identified the appellant in
Court.
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29. On his further examination of recall, P.W. 8 identified the
polythene packet recovered by police as shown by the appellant and the
jangiya recovered as shown by the appellant together with his signature
on the label attached to the packet.
30. Another seizure list witness, who is a friend of P.W. 8, was
examined as P.W. 9. He stated that he was a resident of Khiderpore at
45H/9, Nazir Lane, Kolkata – 23. He stated that about three years ago
(from May 11, 2016) at about 4:20 p.m. he was going from Babughat
towards Hastings on a bike. Before the flyover one police van was
standing and the police officer requested him to be a witness in
connection with a murder case to which he agreed. He also stated that
the appellant who was identified by P.W. 9 in Court was accompanying
the police at the relevant time. The police took the appellant to a place
where garbage was kept under the bridge. P.W. 9 accompanied them.
There the accused took up one black polythene from the garbage and
handed it over to the police officer. On opening the said packet, the police
found one black pant and one check coloured jangiya of a child which
were seized by the police officer under a seizure list. P.W. 9 and his
friend P.W. 8 also signed the seizure list. According to P.W. 9 the
appellant also put his left thumb impression on the seizure list. The
aforesaid articles were sealed and packed by the police. P.W. 9 also
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signed on the labels attached to such packets. P.W. 9 identified his
signatures on the seizure list as well as the labels. He also identified the
wearing apparels recovered by the police.
31. The gateman of the Race Course deposed as PW10. He stated
that he used to work as security guard at 2, Bakery Road stable
employed by Jupiter Company. There were horses, horsemen and some
porters in the stable. He also stated that on July 20, 2013, his duty
hours were between 10.00 p.m. and 6.00 a.m. There were two gates one
of which remained closed and he used to be on duty on the gate which
remained open. The gate used to be closed at 12.30 in the night. There
were two security guards and one supervisor remained on duty at the
gate. Sk. Bakul was the supervisor. PW10 further stated that on July 20,
2013 at about 2.30/2.45 a.m. one person came to the gate of stable and
requested to allow him inside the stable as he used to work there. PW10
did not identify such persons and therefore, refused to open the gate. He
asked the said person that he could enter only after the gate is open after
4.00 a.m. Thereafter, at the instructions of his Supervisor, PW10 opened
the gate and allowed such person to come inside. The person was
wearing blue shirt and black trouser. After sometime, the said person
went outside wearing khaki uniform of RCTC. PW10 identified the
appellant in court as the person whom he let inside the stable.
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32. The security supervisor deposed as PW 11. He stated that he
used to reside at 41D, Jon Nagar and was employed as a security guard
in Jupiter Company. He had his duty in the stable between 8.00 p.m.
and 8.00 a.m. he further stated that on the date of incident, PW 10 and
one Birendra were on duty with him. The stable consisted of the places
where the horses were kept and quarters were for the caretakers. PW 11
also stated that there were 200 to 250 caretakers who used to stay in the
quarters. The racecourse was adjoining the stable and the stable
quarters were within the compound of racecourse. There were two gates
to the entire compound. One gate was used for entry and exit and the
other gate was open for access of garbage vehicles. The gates used to
remain open from 4 AM to 12:30 AM.
33. PW 11 further stated that on the date of incident the night the
gate was shut as usual. At about 2/2.30 a.m. the appellant was shouting
at the gate. One of his guards i.e. PW 9 could not identify him. PW 11
identified the man as his staff who used to reside in Kholi No. 15. On his
query, the appellant told him that he had a friend at racecourse and he
slept there. PW 11 identified the appellant in court as a caretaker of the
stable and his wearing apparels. He also stated that on the date of
incident, the appellant was wearing blue shirt and black trouser.
According to PW 11, he opened the gate for the appellant and he went to
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his Kholi. Thereafter, at about 3/3.30 a.m. the appellant returned to the
gate wearing a khaki uniform carrying a black coloured polythene bag in
his hand and went out of the gate.
34. An employee of racecourse deposed as PW 12. He stated that he
was employed as a supervisor in the racecourse at Hastings under Javed
Khan for the last one and half year (from July 16, 2016). He was
employed there in July 2013 as well. Javed Khan was owner of 40 horses
kept in the stable in the racecourse. There were as many caretakers who
looked after the horses. PW 12 also stated that his job was took maintain
a register of caretakers and track their attendance. The register used to
be kept with Javed Khan. He also stated that there were three persons
employed as caretakers named Sudesh Paswan. PW 12 further stated
that on July 21, 2013 Sudesh Paswan No. 3 was not on duty as
appearing from the attendance register. Prior to that he was sent from
duty. He proved the attendance register (Exhibit 8). He also proved his
signature on the seizure list through which the attendance register was
seized.
35. Javed Khan was examined as PW 13. He has stated that he was
a professional horse trainer at racecourse, Royal Calcutta Golf Club and
a resident of Merlin Regency, 25, Dr Suresh Sarkar Road, Kolkata 14. He
further stated that he obtained a license for horse training in 1988 and
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has been working as such. On July 26, 2013 he had 40 horses in the
Racecourse. He identified his signature in the attendance register. He
further stated that the horses were kept in the stable provided by the
club at 2, Bakery Road. Going through the register, he stated that in the
month of July, there were 57 employees who used to look after the
horses. PW 13 also stated that there were three persons named Suresh
Paswan being identified by numbers 1, 2 and 3. The appellant was
identified in court as Suresh Paswan No. 3 who was a temporary
employee. PW 13 stated that the appellant travelled to Kolkata with one
of the horses from Bangalore and was employed in Kolkata for 5/6
months. PW 13 also stated that on July 26, 2013 at Suresh Paswan was
absent from duty and on the next day the police came to the society
office and asked PW 13 to accompany them with the attendance register.
PW 13 and Ram Kishen accompanied him and handed over the register
to the police which was seized from the racecourse employees’ office. PW
13 stated that he heard that Suresh Paswan had gone around the area,
abducted the minor, raped and molested her and murdered her. PW 13
proved his signature on the seizure list which he signed after going
through it.
36. A medical officer was examined as PW14. He stated that on July
21, 2013 he was posted as Emergency Medical Officer at SSKM Hospital.
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On the said day at about 7.30 a.m. one female child aged about 2 ½
years i.e. the victim was brought dead in the emergency before him by
the police officers of Hastings police station which was identified by her
grandmother Nayan Sardar. On examination, he prepared a medical
certificate which he identified (Exhibit 11). In his cross examination,
PW14 admitted that there was no reflection of any injury on the lower
portion of the body of the child as there was no such injury.
37. A Sub-inspector of police deposed as PW15. He stated that on
July 21, 2013, he held inquest over the dead body of the victim aged
about 2 ½ years in presence of witnesses. The body was identified by
Nayan Sardar and Palan Sardar who put their left thumb impression
over the inquest report. PW15 proved the inquest report prepared in his
pen and signature (Exhibit 12).
38. The Deputy Manager of CESC deposed as PW16. He stated that
in pursuance to a letter dated July 29, 2013 from Joint Commissioner of
Police, his officer responded through a letter by the Manager, System and
Control, CESC, dated September 6, 2013. The letter was in respect of a
query, if there was any load shedding from the south eastern side of
RCTC to its northern side along with Khidderpore Road and ramp along
Vidyasagar Setu and its vicinity between 17.00 hours on July 20, 2013
24
and 6.00 hours on July 21, 2013. PW16 proved the two letters (Exhibits
13 & 14).
39. The autopsy surgeon deposed as PW17. He stated that on July
21, 2013 he conducted post mortem examination on the dead body of the
victim aged about 2 ½ years. The dead body was identified by police
Constable Swapan Kumar Haldar. He proved the post mortem report in
his pen and signature (Exhibit 15).
40. PW17 also stated that on in the same capacity, on July 23,
2013, he performed medico legal examination of the appellant identified
by the police officers. On examination, he prepared his report which he
proved (Exhibit 16). In his further examination on recall, PW17 narrated
the details of injury found on the person of the victim viz.
i. One abrasions 0.5×0.3 cm over right side of frontal region of
scalp 8″ right to midline and 3.5″ above right eyebrow.
ii. One abrasions 0.4×0.2 cm over right side of frontal region of
scalp 5cm right to midline and 3 cm above right eyebrow.
iii. One abrasions 0.6×0.4 cm over right side of frontal region of
scalp 5cm right to midline and 1.5 cm above right eyebrow.
iv. One lacerated wound 3.5 cm x 1 cm x muscle over lower
border of right side of body of mandible extended from
midline.
v. One abrasion 1 cm x 0.5 cm over antero-lateral aspect of
right side of neck 3.5cm below mandible and 3cm right to
midline almost vertically placed.
25
vi. One abrasion 1.2 cm x 0.5 cm over antero-lateral aspect of
right side of neck 5cm below mandible and 3cm right to
midline almost vertically placed.
vii. One abrasion 0.5 cm x 0.4 cm over antero-lateral aspect of
right side of neck 6.5cm below mandible and 3cm right to
midline almost vertically placed.
viii. One abrasion 1.5 cm x 0.5 cm over antero-lateral aspect of
right side of neck 3.5cm below mandible and 3cm left to
midline placed obliquely lower end downwards and medially
directed.
ix. One abrasion 7 cm x 2 cm over left mandible antero-lateral,
left lateral and left side of posterior aspect of neck and 5cm
below mandible and 2.5cm left to midline and post end at
posterion midline of neck and 2.5 cm below external occipital
protuberance and 3 cm below left mastoid prominence;
placed obliquely.
x. One lacerated wound 2.5 cm x 1cm x muscle deep over
posterior aspect of external genitalia at vaginal introitus with
evidence of oozing of blood from it and evidence of bruise all
around introitus.
41. PW17 also stated that following injuries were found upon
dissection of the dead body, that’s to say:
xi. One haematoma 6cm x 5cm over right side of frontal region
of scalp.
xii. One haematoma 7cm x 5cm x muscle over middle portion of
occipital region of scalp.
26
xiii. One bruise 3.5cm x 2cm x muscle over antero lateral aspect
of right side of neck corresponding to injury nos. v, vi and vii.
xiv. One bruise 2.5cm x 1cm x muscle over antero lateral aspect
of left side of neck corresponding to injury no. viii.
xv. Fracture over right clavicle 5cm lateral to medial end of right
clavicle.
xvi. One bruise 3cm x 2cm x muscle over right lateral aspect of
larynx.
xvii. One bruise 2cm x 1cm x muscle over left lateral aspect of
larynx.
42. To an answer to court, PW17 stated the injuries were sufficient
to show that the victim had been subjected to manual strangulation and
throttling and that injury no. 10 clearly suggested that the victim had
been subjected to sexual assault. He also opined that in injury nos. xi to
xvii there was no sign that the victim was brutally raped but said injuries
were sufficient to cause death of a minor due to manual strangulation.
43. In his cross examination, PW17 stated that injury nos. i to ix
were caused by finger nails and that injury nos. xiii, xiv, xvi and xvii
suggested that the victim died of manual strangulation. PW17 denied a
suggestion advanced by the defense that the injuries found on the person
of the victim could be caused being thrown on a rough surface or by
falling in a drain.
27
44. PW18 is a police constable. He carried the dead body of the
victim from SSKM morgue to SSKM police morgue and identified the
dead body before the doctor. He identified the victim through the
photograph shown to him in court.
45. A local inhabitant was examined as PW19. He stated that he
used to reside near Syed Baba Mazar, Hastings and used to go every day
to Victoria to collect food with 10/12 friends. He further stated that on
one morning about 3 years ago, when he was on his way to Victoria as
usual, near the Racecourse, he found the dead body of granddaughter of
Nayan lying in the drain wearing a frock and wrapped in an ‘orna’,
bleeding from nose and had a cut injury on her chin. PW19 and others
went and called the grandmother of the victim who came there and
picked up the child took her towards the mazar. Thereafter police
arrived. PW19 identified the victim and the place from where she was
recovered through the photographs shown in court.
46. One assistant director of Biology Division in the state forensic
science laboratory was examined as PW20. He stated that on August
26,2013, one packet was received by office of director, FSL in connection
with Hastings DD P.S case no.208 dated July 21,2013. PW 20 also stated
that he examined the contents of the parcel and prepared the report
which he proved (Exhibit 17). He also stated that after the examining the
28
content of the parcel, blood stain samples were collected and sent to
Serologist for determination of origin and proof of blood under his letter
dated October 9,2013. PW 20 has also proved the letter as well as the
report of the serologist. He has proved the his signature on the Material
exhibits.
47. The assistant engineer of electrical Division in PWD deposed as
PW 21. He stated that own October 24,2013 he was posted in maidan
Division of PWD. One report was called by the crime branch from the
executive engineer, PWD, West Kolkata Electrical Division as to whether
the street was properly illuminated at that time. In response to such
query, PW 21 submitted his report on October 23,2013. He proved the
report (Exhibit 18).
48. A local resident deposed as PW 22. She stated that she was a
resident of Hastings near the ‘mazar’. She also stated that on a Sunday
in the morning at about 6 a.m. she along with her friends had gone to
collect food from Victoria. On the way her sister noticed something lying
in the drain. It was the dead body of a child. She was wearing a frock
and was wrapped in an orna. PW22 could notice a cut mark on her chin
and bleeding from the nose of the child. She then reported the matter to
her grandmother and others. They came and took out the child from the
drain. She was taken to maidan. Thereafter, police arrived and examined
29
PW22 and others. She also stated that in the previous night her
grandmother had asked her about the child to which she replied in the
negative. PW22 identified the victim and the place from where her dead
body was recovered as well as wearing apparel of the victim through
photographs.
49. A police officer who was the member of raiding party deposed as
PW23. He stated that he along with the police force being accompanied
by the maternal uncle of the appellant travelled to Vaishali, Bihar to
secure arrest of the appellant. Upon identification of the maternal uncle
of the appellant, he entered into a house and found the appellant. He
was arrested accordingly. Upon his arrest, a 2nd class railway ticket
from Sealdah to Hajipur for July 21, 2013 was recovered from the pocket
of appellant which was seized. The police also obtained the left thumb
impressions of appellant and his maternal uncle on the backside of the
ticket. The seizure list and the ticket were proved by PW23.
50. Senior Scientific Officer of Forensic Science Laboratory deposed
as PW24. He proved the forensic report dated February 20, 2014 in
connection with Hastings PS Case No. 208 dated July 21, 2013 prepared
in his pen and signature in respect of multicolor top and panty.
51. PW25 was the Project Manager (Electrical) of HRBC which
maintain lights on the bridges within the jurisdiction of Calcutta. He
30
proved the report dated March 12, 2014 sent in pursuance of a
requisition received from the Joint Commissioner of Police, Detective
Department. The report was in connection with a query whether the High
Mast Light around Syed Baba Mazar, Hastings more right up to western
side of Royal Calcutta Turf were on at the relevant point of time.
52. A Sub-inspector of police was examined as PW 26. He
corroborated the statement of PW23. He also went to Vaishali district in
Bihar and as per identification of the maternal uncle of the appellant, the
appellant was arrested from his house. A railway ticket from Sealdah to
Hajipur was also recovered from his possession. PW26 also proved the
seizure list as well as the railway ticket recovered from the appellant.
53. The Judicial Magistrate who conducted the test identification
parade of the appellant was examined as PW27. He proved the test
identification parade report prepared in his pen and signature (Ext. 23).
The appellant was identified at such test identification parade by
witnesses Sk. Sarfaraj and Md. Azharuddin.
54. A police officer deposed as PW28. He stated that on July 21,
2013 he was on night patrolling duty. On his duty, when he reached
near Vidyasagar Setu, he saw some persons assembled. He was informed
that the victim girl went missing while sleeping. He also tried to trace out
the missing victim. Later on, he was informed that the missing girl was
31
traced. PW28 went there and came to know that the missing girl was
found lying in a drain on the northern side of Race Course. She was
taken by her grandmother to the place where she was sleeping. PW28
also stated that he saw the dead body wearing a frock and orna but there
was no panty. There was bleeding from her nose as well as private parts.
He took the victim to SSKM Hospital with her grandmother and other
relatives where the doctor declared her dead. PW28 identified the wearing
apparel of the victim. He also issued requisition for inquest and post
mortem and collected death certificate of the victim. He informed the
Officer-in-charge about the incident, guarded the place of occurrence and
lodged GDE in this regard.
55. A maternal uncle of the appellant deposed as PW29. He stated
that he used to work in the stable. The appellant also worked there and
used to stay where he lived. He stated that as per the request of police he
accompanied police to native place of appellant in Bihar where the
appellant was arrested. He further stated that police also recovered and
seized a railway ticket and certain photographs from the possession of
appellant in his presence.
56. A co-worker was examined as PW30. He stated that he knew the
appellant as well as PW29. He also stated that police came to the kholi
where the appellant used to reside, and upon search, recovered some
32
photographs from the wearing apparel of the appellant. PW30 proved the
wearing apparel of the appellant and the recovered photographs as also
his signature on seizure list.
57. Another police officer deposed as PW31. He stated that on July
21, 2013, as per instructions of his superiors, he visited SSKM Hospital
morgue. He found the dead body wearing a multi color frock with one
Orna stained with mud and blood. She was not wearing pant. He also
found cut mark on her chin and injury on her head bleeding from
nostrils ears and private parts. He also met with the grandmother and
other relative of the victim. He also examined and recorded the statement
of grandmother of the victim which he proved and was later treated as
complaint. He also filled up the formal First Information Report and
started specific case. He was endorsed with the investigation of the case.
He has narrated the steps taken by him in course of investigation. He
sent requisition for photograph of the place of occurrence and visited
there. He identified the photographs of the victim and place of
occurrence. In course of investigation, PW31 tried to arrest the appellant,
made search in his residence and recovered certain photographs. He
examined the witnesses. The appellant is alleged to have confessed
before witness Girdhari Paswan that he committed rape and murder of
33
the victim girl. Later on, the investigation of the case was handed over to
homicide squad. Accordingly, he handed over the case papers.
58. The second investigating officer deposed as PW32. After
receiving the investigation of the case, PW32 sent the appellant for his
medico-legal examination, got the rough sketch map of the place of
occurrence prepared with the help of plan making Section of Lalbazar.
He also sent requisition and collected the list of employees of RCTC as
well as attendance register and seized the same under proper seizure list.
He also recorded the statement of available witnesses. PW32 also sought
report from the electricity division of PWD, CESC and other authorities
and collected its reports. He also proved the relevant portion of the
statement of the appellant which led to recovery of the wearing apparel of
the victim girl as also the seizure list under which such articles were
seized. He also sent prayer for holding Test Identification Parade of the
appellant and collected its report, sent the seized articles including
viscera for chemical examination. On completion of investigation, PW32
submitted charge sheet against the appellant.
59. From the trend of cross examination of the prosecution
witnesses as well as examination of the appellant under Section 313 of
the Code of Criminal Procedure, it transpires that the appellant has
pleaded complete innocence. According to the appellant, he has no
34
connection with the incidence involved in the case. He has been falsely
implicated on mere suspicion. It was also submitted on behalf of the
appellant that in the preliminary medical report, no injury was found on
the lower part of the body of the victim which completely rules out any
possibility of sexual assault upon the victim.
60. From the case made out by the prosecution, the victim was aged
about 2 ½ years. On the alleged date of incident, she was sleeping with
her grandmother i.e. the de facto complainant. In the night when PW3
woke up to feed bottled milk to the victim, she could not be found. The
de facto complainant raised hue and cry, reported the matter to the
neighbours. A search operation was conducted by several persons but
the victim was not found. On the following morning i.e. on July 21, 2013,
when the children of the slum went towards Victoria to collect food, they
saw a body of the victim lying in the drain. The children reported such
recovery to the grandmother of the victim. Thereafter, PW3 accompanied
by local people went to the spot, identified the dead body to be that of her
granddaughter and brought it back to where she used to reside beneath
the flyover at Hastings.
61. After that, police information was given to police. Police arrived
there and took the dead body of the victim to SSKM Hospital where she
was declared dead. According to the case set out by the prosecution, the
35
dead body of the victim contained bleeding from nostrils and ears. There
were other injuries on other parts of the body like chin, head etc. The
medical officer who first examined the victim on July 21, 2013 at 7.30
a.m. i.e. PW14 has proved his medical examination report Exhibit 11.
Later on, PW17 conducted post mortem examination on the dead body of
the victim on July 21, 2013 itself. From the evidence of PW17 together
with the post mortem report prepared by him, Exhibit 16, it appears that
the autopsy surgeon had found as many as 17 injuries on the person of
the victim. According to the evidence of PW17 coupled with the testimony
of exhibit 16, it is quite evident that the victim died in an incident of
assault. In his deposition, PW17 categorically stated that injury No. 1 to
9, noted by him, were caused due to manual strangulation and were
sufficient, in the ordinary course of nature, to cause death of a minor
due to manual strangulation. Evidence of PW17 also revealed that injury
No. 10 was sufficient evidence to establish that the victim was subjected
to sexual assault prior to her death. The autopsy surgeon also opined
that injury Nos. 1 to 9 were caused by finger nails and that injury Nos.
13, 14, 16 and 17 were sufficient to hold that the victim died due to
manual strangulation. PW17 categorically ruled out the possibility of
such injuries caused due to fall on rough surface.
36
62. Therefore, in view of the case of the prosecution coupled with
the medical evidence adduced on behalf of the prosecution, it is quite
evident that the victim girl died an unnatural death due to manual
strangulation. The evidence so adduced also suggests the victim. being a
child, was subjected to sexual assault before her death and in order to
wipe out the evidence of crime, the victim girl was killed.
63. As regards the person responsible for the rape committed upon
the victim girl and her death, according to the case of the prosecution,
the appellant kidnapped the girl child from her residence beneath the
Hastings flyover, committed sexual assault upon her and with a view to
causing disappearance of the evidence of such crimes, murdered the
child. As noted in the evidence adduced on behalf of the prosecution, the
appellant used to reside in a Kholi built for the purpose of residence of
horsemen of Race Course. He used to reside there with a number of
other horsemen and other staff of RCTC. All on a sudden, in the night of
incidence, the girl child went missing while sleeping with her
grandmother, PW3.
64. When the child went missing, a ruckus broke out. People from
the locality assembled. Search was conducted to trace out the child,
however, she could not be found instantly. When the local people
assembled, it came out that one person being the appellant, was found
37
peeping into the residence of some local inhabitants and PW4 shooed
him away. He was also found roaming in the locality in the late night.
PW5 also saw the appellant roaming around the locality. The appellant
was apprehended by the local people and was brought to the assembled
crowd. However, he was released at the instance of the gateman of the
Race Course who knew him. PW3 also stated that the appellant was first
apprehended by local people and brought before the crowd. The crowd
asked him as to what was he doing at such late hours of night, to which
he replied that he had gone to Race Course and fell asleep. He was
returning to his residence in the Race Course after waking.
65. Not only that, PW6 and PW7 was returning home after watching
movie and taking dinner in a restaurant. While returning, near the Race
Course at the mouth of the flyover, they saw the appellant with a child in
his lap. They not only identified the appellant and his wearing apparel at
the relevant point of time but also identified the child in the lap of the
appellant from the photographs of the dead body taken in course of
investigation. Such witnesses also identified the wearing apparel of the
victim as well. The statement of PW6 and PW7 was duly verified by the
investigating officer. In his deposition, the investigating officer has
testified that he examined the owner of the restaurant who corroborated
the statement of the PW6 and PW7 to the effect that they had taken
38
dinner at his restaurant in the night of the incident. Knowing of the
incident on the following day, the aforesaid witnesses voluntarily went,
first to Watgunge Police Station wherefrom they were sent to Hastings
Police Station. PW6 also identified the appellant in the Test Identification
Parade, as the person whom he saw in the night of incident moving with
the child in lap.
66. The wearing apparel of the victim child was recovered as per the
leading statement of appellant. The appellant is said to have made a
statement before the investigating officer that he would assist in recovery
of wearing apparel of the victim. Relevant part of such statement was
proved by the investigating officer. Such wearing apparels were recovered
as shown by the appellant in presence of independent witnesses. PW8
and PW9 testified such recovery in their presence and as shown by the
appellant. They also identified the recovered articles as well as their
signature on the seizure list as well as the labels attached to such
articles. The aforesaid witnesses firmly stated that recovery of a black
polythene containing the wearing apparel from the garbage was made as
pointed by the appellant. They also identified the appellant in court as
the person who accompanied the police and pointed to the recovered
articles lying in a black polythene in the garbage. Therefore, on the basis
of such evidence, there can be no doubt that the wearing apparel were
39
recovered in terms of the provisions of Section 27 of the Indian Evidence
Act, 1872.
67. PW10 has testified that the appellant had knocked the gate of
stable at 2, Bakery Lane, at 2.30/2.45 a.m. in the night of July 20, 2013
requesting to let him inside. He first refused as he did not identify the
appellant. But later, as instructed by the supervisor, the appellant was
allowed to enter into the stable. PW10 also gave the description of the
wearing apparel the appellant was wearing at the relevant time which
was blue shirt and black trouser. He also stated that after a while, the
appellant again went outside wearing Khaki uniform of RCTC. The
statement of PW10 was fully corroborated by the supervisor PW11. He
also corroborated that after sometime, at about 3.00/3.30 a.m. the
appellant left the stable wearing khaki uniform carrying a black
polythene. Both the witnesses identified the appellant in court as the
person who entered and left the stable in the relevant night. The
attendance register of the stable was also brought on record which
showed that on July 21, 2013 as well as on July 26, 2013, the appellant
was absent from his duty, however, prior to that he did not remain
absent.
68. It transpires from the record, that the appellant, after
committing the offence, came back to the stable in the night and shortly
40
thereafter, he left the stable with a black polythene, possibly to dispose of
the evidence of crime i.e. wearing apparel of the victim. Such wearing
apparel was later recovered as per the leading statement of the appellant.
Thereafter, the appellant, who has never been absent from his duty, fled
away to his native place in Vaishali district of Bihar. He was arrested
from his native village at Bihar by the police. Record also shows that a
railway ticket was also recovered from the possession of appellant
showing the date of journey on July 21, 2013.
69. Witnesses had seen and identified the appellant carrying a child
in his lap. The child in lap was also identified by the witnesses as the
victim girl child. The prosecution proved reports from CESC, PWD
(Electrical Division) as well as officials from HRBC which goes to
establish that there was sufficient light in and around the Hastings
flyover and Syed Baba Mazar area in the night of July 20, 2013/ July 21,
2013. There was no report of any technical snag or power cut on the date
of incident. Therefore, such reports establish that there was sufficient
light on the roads, flyover and surrounding areas of Hastings to enable
the witnesses identify the appellant. Not only the appellant but the victim
and wearing apparels of the appellant as well as the victim were
identified beyond any shadow of doubt.
41
70. Therefore, in view of such overwhelming evidence with regard to
suspicious presence of the appellant at the date time and place of
occurrence, recovery of the victim child as also the recovery of the
wearing apparel of the victim as per the leading statement of the
appellant, it is established that the appellant and appellant alone is
responsible for committing rape upon the victim coupled with her
murder. The circumstances, set forward by the prosecution, leave no
space for any other hypothesis but of the guilt of the appellant alone. No
circumstance, whatsoever, is forthcoming, on the basis of evidence on
record to propose slightest of hypothecation pointing to involvement of
any person other than the appellant, in the commission of the offences
involved in this case. In that view of the facts we find no fault with
finding of the learned trial court in so far as conviction of the appellant
for the offences punishable under Sections 364/376A/302 of the Indian
Penal Code, 1860 as well as Section 6 of Protection of Children from
Sexual Offences Act, 2012 is concerned. We uphold such conviction.
71. The appellant, having been found guilty of the offences
punishable under Sections 364/376A/302 of the Indian Penal Code and
Section 6 of Protection of Children from Sexual Offences Act, 2012 was
awarded with death penalty for the offence under Section 302 of the
42
Indian Penal Code besides punishments for other offences he was found
guilty of.
72. We have considered the impugned judgment as well as the
psychological evaluation report in respect of the appellant. The appellant
is 45 years of age. His psychological evaluation report suggests that his
current intellectual functioning fell under the category of mild mental
disability which could be attributed to his nil education. The socio-
economic report of the appellant represents that the appellant was the
only child of her parents. His father died before his death and was
brought up by his mother who worked as agricultural labourer. His life
has been reeling under poverty.
73. It is trite law that imposition of death penalty should be resorted
to if the circumstances of the case and the evidence led therein leave an
impression that the option of imposition of any other penalty stands
foreclosed. Possibility of future reformation is also a relevant factor to be
taken into consideration while awarding death sentence to a convict. The
Hon’ble Supreme Court in the case reported in 2025 SCC OnLine SC
575 (Ramesh A Naika vs. Registrar General, High Court of
Karnataka Etc.) laid down that,
“12. The ground of the case being based on circumstantial
evidence, although, addressed in the main judgment, is
amiss in the order of sentencing. A Three-Judge Bench in
43
Shatrughna Baban Meshram v. State of Maharashtra,
considered this question in detail. It was concluded as
hereinbelow:
“49. These cases discussed in preceding paragraphs show
that though it is accepted that the observations in Swamy
Shraddananda (2) [Swamy Shraddananda (2) v. State of
Karnataka, (2008) 13 SCC 767 : (2009) 3 SCC (Cri) 113] did
not lay down any firm principle that in a case involving
circumstantial evidence, imposition of death penalty would
not be permissible, a definite line of thought that where the
sentence of death is to be imposed on the basis of
circumstantial evidence, the circumstantial evidence must be
such which leads to an exceptional case was accepted by a
Bench of three Judges of this Court in Kalu Khan [Kalu Khan
v. State of Rajasthan, (2015) 16 SCC 492 : (2015) 4 SCC (Cri)
871]. As a matter of fact, it accepted the caution expressed
by Sinha, J. in Swamy Shraddananda v. State of Karnataka
[Swamy Shraddananda v. State of Karnataka, (2007) 12
SCC 288, para 87 : (2008) 2 SCC (Cri) 322] and the
conclusions in Santosh Kumar Satishbhushan Bariyar
[Santosh Kumar Satishbhushan Bariyar v. State of
Maharashtra, (2009) 6 SCC 498 : (2009) 2 SCC (Cri) 1150] to
restate the principles with clarity in its decision.
50. It can therefore be summed up:
50.1. It is not as if imposition of death penalty is
impermissible to be awarded in circumstantial evidence
cases.
50.2. If the circumstantial evidence is of an unimpeachable
character in establishing the guilt of the accused and leads to
an exceptional case or the evidence sufficiently convinces the
44judicial mind that the option of a sentence lesser than death
penalty is foreclosed, the death penalty can be imposed.
51. It must therefore be held that merely because the instant
case is based on circumstantial evidence there is no reason
to commute the death sentence. However, the matter must be
considered in the light of the aforestated principles and see
whether the circumstantial evidence is of unimpeachable
character and the option of a lesser sentence is foreclosed.”
(Emphasis supplied)
13. As is clear from the above, the award of death penalty is
not precluded. The rule only is that the circumstantial
evidence ought to be unimpeachable, and the matter at hand
be an exceptional case, or the evidence be so convincing that
the option of imposition of any other penalty stands
foreclosed in the judicial mind. Therefore, nonconsideration of
this ground cannot be said to be damaging to the sanctity of
the sentencing order.
14. It has been said in Swamy Shraddananda (2) v. State of
Karnataka10 that “The absolute irrevocability of the death
penalty renders it completely incompatible to the slightest
hesitation on the part of the Court.” Given that recently, this
Bench in Deen Dayal Tiwari v. State of U.P. considered that
multiple factors, including the absence of criminal
antecedents, may be a ground to commute the sentence of
the accused.”
74. In the case reported in (1980) 2 Supreme Court Cases 684
(Bachan Singh vs. State of Punjab), the Hon’ble Supreme Court laid
down the principles of evaluation of aggravating circumstances and
45
mitigating circumstances in order to decide a case where death penalty
could be awarded or avoided in the following terms, that is to say;
“02. Drawing upon the penal statutes of the States in U.S.A.
framed after Furman v. Georgia [33 L Ed 2d 346 : 408 US
238 (1972)] , in general, and clauses 2 (a), (b), (c) and (d) of
the Penal Code, 1860 (Amendment) Bill passed in 1978 by
the Rajya Sabha, in particular, Dr Chitale has suggested
these “aggravating circumstances”:
“Aggravating circumstances: A court may, however, in the
following cases impose the penalty of death in its discretion:
(a) if the murder has been committed after previous planning
and involves extreme brutality; or
(b) if the murder involves exceptional depravity; or
(c) if the murder is of a member of any of the armed forces of
the Union or of a member of any police force or of any public
servant and was committed–
(i) while such member or public servant was on duty; or
(ii) in consequence of anything done or attempted to be
done by such member or public servant in the lawful
discharge of his duty as such member or public servant
whether at the time of murder he was such member or
public servant, as the case may be, or had ceased to be
such member or public servant; or
46
(d) if the murder is of a person who had acted in the lawful
discharge of his duty under Section 43 of the Code of
Criminal Procedure, 1973, or who had rendered assistance to
a Magistrate or a police officer demanding his aid or requiring
his assistance under Section 37 and Section 129 of the said
Code.”
75. The Hon’ble Supreme Court also observed, in the case of
Bachan Singh (supra) that,
“205. In several countries which have retained death
penalty, pre-planned murder for monetary gain, or by an
assassin hired for monetary reward is, also, considered a
capital offence of the first-degree which, in the absence of
any ameliorating circumstances, is punishable with death.
Such rigid categorisation would dangerously overlap the
domain of legislative policy. It may necessitate, as it were, a
redefinition of ‘murder’ or its further classification. Then, in
some decisions, murder by fire-arm, or an automatic
projectile or bomb, or like weapon, the use of which creates a
high simultaneous risk of death or injury to more than one
person, has also been treated as an aggravated type of
offence. No exhaustive enumeration of aggravating
circumstances is possible. But this much can be said that in
order to qualify for inclusion in the category of “aggravating
circumstances” which may form the basis of “special
reasons” in Section 354(3), circumstance found on the facts of
a particular case, must evidence aggravation of an abnormal
or special degree.
206. Dr Chitale has suggested these mitigating factors:
47
“Mitigating circumstances.–In the exercise of its discretion in
the above cases, the court shall take into account the
following circumstances:
(1) That the offence was committed under the influence of
extreme mental or emotional disturbance.
(2) The age of the accused. If the accused is young or old, he
shall not be sentenced to death.
(3) The probability that the accused would not commit
criminal acts of violence as would constitute a continuing
threat to society.
(4) The probability that the accused can be reformed and
rehabilitated. The State shall by evidence prove that the
accused does not satisfy the conditions (3) and (4) above.
(5) That in the facts and circumstances of the case the
accused believed that he was morally justified in committing
the offence.
(6) That the accused acted under the duress or domination of
another person.
(7) That the condition of the accused showed that he was
mentally defective and that the said defect impaired his
capacity to appreciate the criminality of his conduct.”
76. Similarly in the case reported in (1983) 3 SCC 470 (Machhi
Singh vs. State of Punjab), the Hon’ble Supreme Court, noted the
following principles in respect of awarding death penalty as,
“38. In this background the guidelines indicated in Bachan
Singh case [(1980) 2 SCC 684: 1980 SCC (Cri) 580: AIR 1980
SC 898: 1980 Cri LJ 636] will have to be culled out and
applied to the facts of each individual case where the
question of imposing of death sentence arises. The following
48
propositions emerge from Bachan Singh case [(1980) 2 SCC
684 : 1980 SCC (Cri) 580 : AIR 1980 SC 898 : 1980 Cri LJ
636] :
“(i) The extreme penalty of death need not be inflicted
except in gravest cases of extreme culpability.
(ii) Before opting for the death penalty the circumstances of
the ‘offender’ also require to be taken into consideration
along with the circumstances of the ‘crime’.
(iii) Life imprisonment is the rule and death sentence is an
exception. In other words death sentence must be imposed
only when life imprisonment appears to be an altogether
inadequate punishment having regard to the relevant
circumstances of the crime, and provided, and only
provided, the option to impose sentence of imprisonment
for life cannot be conscientiously exercised having regard
to the nature and circumstances of the crime and all the
relevant circumstances.
(iv) A balance sheet of aggravating and mitigating
circumstances has to be drawn up and in doing so the
mitigating circumstances have to be accorded full
weightage and a just balance has to be struck between the
aggravating and the mitigating circumstances before the
option is exercised.”
77. In the case at hand, as noted hereinbefore, the appellant is aged
45 years and comes from a very poor economic background. He was
married but his wife has left the appellant. He used to reside alone in the
49
horse stable. The circumstances of the case do not suggest that the
offence committed was preplanned or was an outcome of any rivalry or
enmity with the family of the victim. As has been held by the Hon’ble
Supreme Court in many cases that every murder is gruesome but does
not justify death penalty. In any case, we are not in a position to return a
finding that the offence involved in the case at hand falls under the
category of ‘rarest of rare cases’ to justify the punishment of death.
78. Therefore, taking into consideration the entire facts and
circumstances of the case discussed hereinbefore and in consideration of
the ratio laid down by the Hon’ble Supreme Court, we are minded to
commute the death sentence awarded to the appellant for the offence
punishable under Section 302 of the Indian Penal Code, 1860, into one
of life imprisonment. However, considering the age of the appellant as
well 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 50 years from the date of
his arrest.
79. The other portions of the sentence imposed by the impugned
judgment and order for the offences punishable under Section
376A/364 of the Indian Penal Code and Section 6 of the Protection of
Children from Sexual Offences Act, 2012 are affirmed.
50
80. Accordingly, Death Reference 2 of 2019 along with the appeal
being C.R.A. 384 of 2019 are disposed of.
81. A copy of this judgment along with the Trial Court records be
remitted to the appropriate Court forthwith. In view of the commutation
of the death penalty of Suresh Paswan, any warrant issued by the
appropriate Court with regard thereto in respect of Suresh Paswan
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 Suresh Paswan, in their records.
82. Period of detention already undergone by the appellant shall be
set off against the substantive punishment in terms of the provisions
contained in Section 428 of the Code of Criminal Procedure.
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.]