Kamduni Gang-Rape & Murder | Calcutta HC Commutes Death Sentence Of Accused, Says Nature Of Injuries Not ‘Extensive & Brutal’

The Calcutta High Court has commuted the death sentence of some of those accused in the brutal gang-rape and murder of a 20-year-old girl in Kamduni, in June 2023. The Court further acquitted another accused who had also been sentenced to death by the trial court.

A division-bench of Justice Joymalya Bagchi and Justice Ajay Kumar Gupta held:

Trial Court held the murder and rape was a pre-planned one. Victim had scoffed at the appellants. Hence, they brutally raped and murdered her. The Court noted the brutality of the offence by referring to the injuries in the private parts of the victim. Prior concert of the appellants to avenge on the purported snub by the victim has not been proved. The post-mortem report does not mention any internal injury on the abdominal part of the victim. No injury on the external pelvic part was noted and depth of the tear in the posterior fourchette, hymen and vaginal tissues is not noted…the injuries on the victim cannot be compared with the extensive and brutal injuries noted in Mukesh (2016) which was one of the prime considerations for upholding death sentence in that case.

Brief facts of the Case

The victim, who died aged 20, was due to be picked up by her brother after having written an examination in her college.

When her brother arrived at Kamduni more, he could not locate her due to the rain and was told by his uncle that the girl had proceeded home on foot, but he didn’t find her there.

When he went back to Kamduni he came across Ansar Ali, one of the accused who was the caretaker of a nearby plot. He reported overhearing Saiful, another accused who later confessed to the crime, telling Ansar that they had a great time and should go home.

A search ensued for the victim but she was untraceable, while the brother noticed the two accused along with 4 other accused around the aforesaid plot and “behaving suspiciously.”

Local police reported that the nearby plot area was notorious for being infested with miscreants who preyed on women and that Ansar was the caretaker of the plot, who kept the keys to the place.

Upon entering a structure on the plot, a search party noticed blood on the floor, and the body of a semi-naked girl lying behind the boundary wall of the plot.

Police was informed and the case was handed over to the CID, who charge sheeted eight accused on the basis of evidence obtained from semen & blood-samples and other DNA material on their person and their clothing, as well as on the basis of witness statements who testified to hearing the accused discussing the need to “teach the victim a lesson” for not paying attention to them.

Court perused the entire lower court records, and re-evaluated the evidenced presented by 31 prosecution witnesses, including forensic experts, and neighbours as well as the defence witnesses who attempted to alibi the accused.

Proceedings before the High Court

Counsel for the defence, argued that the place of recovery of the victim’s body had not been proved. He submitted that the body was lying half a kilometre away from the suspect plot under the control of the appellant, outside the boundary wall.

Cour further ruled out that there was any discrepancy in the time of the occurrence, as raised by the defence, upon noting that non-examination of any witness from the college does not affect the unfolding of the prosecution case. On the other hand, these circumstances stand squarely corroborated by the confession of Saiful Ali with regard to the time when the victim was raped and murdered. Hence, the time of occurrence is established beyond doubt.

The bench further upheld the validity of the confessional statement given by one of the accused, Saiful to the judicial magistrate and noted that the substance and tenor of the confession clearly militates against the defence version of a tailormade confession procured through tutoring, coercion or inducement. safeguards and assurances by the Magistrate clearly rule out the possibility of influence on the accused during segregation or at the time of making the confession. Voluntariness of the confession is clearly established.

The Court then turned its attention to the DNA evidence on record, and noted that the prosecution had able to sufficiently establish connection between the accused and the victim and the chain of custody of the biological evidence, and that there was no possibility of substitution by the investigative agency.

It was noted that the questions raised by the defence on the DNA being recovered not being an exact match to the accused, could not rule out the same, since it was only a piece of corroborative evidence, being used to substantiate the confession made by Saiful.

Criminal conspiracy to commit rape between Ansar and Saiful established

The Court was then called upon to consider whether the intent to commit rape and the actions of Saiful could be applied to the entire group as am intent to conspire to rape the victim.

It noted that Ansar was the “leader” and the person who controlled the plot. Court observed that although Saiful’s confession contained an exculpatory portion pertaining to Ansar, the same would not apply to him since Saiful had admitted that Ansar was the source of his economic sustenance.

Ordinarily a man would not inculpate himself while exonerating others. Saiful admits in his confession that Ansar was the source of his economic sustenance. it may not be improbable that Saiful who had confessed his own guilt was trying to protect his master from the rigors of law. He may have been prompted to do so on the expectation that the more resourceful Ansar (if exonerated) would continue to support him and his family, it was held.

Accordingly, the Court held that all the circumstances around the crime, including Ansar having keys to the plot, and Saiful committing rape on the victim, showing a common intention to commit rape and murder of the victim.

Role of other accused in conspiracy to rape and murder not established

Court held that confessional and exculpatory statements made by various accused throughout the trial and established that the other appellants, in Saiful’s own words, had left the plot prior to the occurrence of rape.

It was held that while Saiful had motive to make exculpatory statements for Ansar, he did not share the same intention for the rest of the accused, and thus the presence of these appellants at the time of occurrence and their sharing of common intention to commit rape and murder with Saiful and Ansar were not established.

Prosecution case that Emamul, Bhutto, Bhola and Amin Ali shared common intention with Saiful and Ansar to rape and murder the victim stands on a shaky foundation and cannot be said to have been proved, it was held.

Court noted that although the aforesaid accused had not conspired to commit rape and murder, mamul, Bhutto and Bhola had conspired with Saiful and Ansar to cause the disappearance of evidence.

Accordingly, the Court upheld the convictions of the aforesaid accused, while discharging Nuro and Rafique, two others who had been acquitted by the trial court.

Conviction & Sentence

Court convicted Saiful and Ansar for gang-rape under Section 376B, and Emamul, Aminur and Bhola were acquitted of the same charges while being convicted under Section 201 IPC for destroying evidence.

Amin Ali, Noor and Rafique were acquitted of all charges.

Court noted that while Emamul, Aminur and Bhola who had been acquitted of charges of gang-rape had been sentenced to life imprisonment and already suffered 10 years of incarceration, the maximum sentence under Section 201 IPC was only 7 years.

They were ordered to pay a fine of Rs 10,000 and were considered eligible for release due to the extent of sentence already undergone.

For the sentences of death, imposed on Ansar and Saiful, the Court noted that when comparing the present case to the case of Mukesh v NCT Delhi (2016) which set the benchmark for death sentence in the brutal rape and murder which took place in the national capital, the “extent of injury” was not as severe. Court held:

This shows the injuries on the victim cannot be compared with the extensive and brutal injuries noted in Mukesh (supra) which was one of the prime considerations for upholding death sentence in that case. This does not mean that the offence of rape and murder on a defenceless girl is not a grave and heinous one. The Court is called upon to make this macabre comparison with regard to the nature of injuries to test the proposition advanced on behalf of the State and the complainant that the brutality of the crime deserved death penalty as in Mukesh (supra).

Accordingly, Ansar and Saiful were sentenced to life imprisonment.

Citation: 2023 LiveLaw (Cal) 310

Case: Bhola Naskar @ Bholanath Naskar Vs. State Of West Bengal

Case No: CRA 108 of 2016

Click Here To Read/Download Judgment