State vs Dilip Kumar Singha

N.C. Talukdar, J.—This is a Reference u/s 374 of the Code of Criminal Procedure dated July 17, 1969, by Sri S. K. Mitra, Additional Sessions Judge, Thirteenth Court, Alipore, for confirmation of the sentence of death passed by him on the accused-Appellant Dilip Kumar Singh alias Dilip Singh, who has been convicted u/s 302 of the Indian Penal Code in Sessions Trial No. 4 of May 1969 of the Thirteenth Court of the Additional Sessions Judge, Alipore. The accused-Appellant has also filed an appeal against the said order of conviction and sentence.

The prosecution case brings to light an unfortunate case of a girl in her teens being done to death. One Chinta Haran Pal, a head constable of the Armed Police Battalion resided in quarter No. H. 89 of the Patulia Government quarters, along with his family consisting of his wife Sm. Apala Pal (P.W. 7), his brother-in-law Sabyasachi Guha (P.W. 1) and his three children, viz. Shelly alias Kalpana Pal (P.W. 2), Supriya Pal (P.W. 3) and Subrata Pal (P.W. 4). '' Opposite to the said quarter lived one Jatin Das, another head constable of the said Battalion, with his family in quarter No. H. 75-. Jatin''s family consisted of his wife Sm. Sabita Das (P.W. 8) and his daughter Mira alias Anamika Das, who is the victim. On August 28, 1968, at about 8 p.m. the aforesaid Mira came from quarter No. H 75 to Chinta Haran Pal''s place at quarter No. H. 89 with some rice-cakes. She went inside the quarter and kept the cakes in the kitchen which lies on the eastern end of the adjacent verandah op the north of the" ghar. Thereafter when she was returning to the bed-room of the aforesaid quarter No. H. 89 after washing herself, and while she was still in the verandah she was shot on the right chest with a rifle by the accused Dilip Kumar Singha alias Dilip Singh, who is also a constable of this very Armed Police Battalion. The prosecution case is that the accused had in the meanwhile entered into the room of the said quarter with a rifle in his hand and was in khaki Police uniform with white keds on his feet. He had a Police cap on his head and was wearing a belt containing ammunition and a bayonet. He had previously managed to secure the rifle from the custody of the sentry at Latbagan on the fraudulent representation that he had been asked to proceed to Durgapur and the rifle and the ammunition were required to be redeposited with the magazine before he left for Durgapur. A command certificate was produced by him before the sentry and he took delivery of the rifle and the ammunition. At the time of the incident the children of Chinta Haran Pal and his brother-in-law were present in the room. They are all witnesses to the occurrence. The victim girl, aged about 13 or 14 years, was a student of Class VIII at tire local Girls'' School. On being shot she fell down bleeding profusely on the verandah of the ghar and was removed to the B. N. Bose Hospital. The accused was caught after a scuffle and was disarmed by Sabyasachi with the help of his sister and one Prafulla. When the Police came the accused was made over to them. When brought to the hospital, Mira was declared dead. An inquest on the dead-body and a post-mortem examination were held at the instance of the Titagarh P.S., on receipt of an information from the hospital. Photographs of the dead-body were taken and the wearing apparels were seized. In the meanwhile, an information to the Khardah P.S. was also sent over the phone from the Police camp situated in the Government quarters. The O.C. of Khardah P.S. came to the hospital and recorded the statement of Sabyasachi (P.W. 1) on the basis of which a first information report was drawn. P.W. 34 Sunil Kumar Monda, who investigated into the case, arrested the accused, seized the rifle as also the fired bullet-head and case, along with other bullets together with the wearing dress, including the ammunition belt and the bayonet of the accused. He also seized blood-stained and ordinary cement plaster from the place of occurrence and prepared a sketch map. The rifle, the fired bullet, the two unused cartridges and one fired cartridge case seized by him were sent to the arms expert-cum-scientific officer attached to C.I.D., West Bengal. The blood-stained cement plaster and other articles seized were sent to the Forensic Science Laboratory. Reports were received from both those quarters as also the post-mortem report, to the effect that the girl died as a result of gun-shot which was ante-mortem and homicidal in nature. The I.O. examined witnesses and seized several documents from Latbagan on the basis of the seizure list. On completing the investigation he submitted a charge-sheet against the accused u/s 302, Indian Penal Code. After a preliminary enquiry held by the committing Court, the accused was sent up for trial to the Court of Session to answer a charge u/s 302, Indian Penal Code, for intentionally causing death of Mira alias Anamika Das.

The accused pleaded not guilty and the defence case, as can be gathered from the trend of cross-examination, as also from the statement u/s 342 of the Code of Criminal Procedure appears, inter alia, to be that on the date of the occurrence at about 3-30 p.m. the accused was asked to go back to Durgapur; that in pursuance thereof he dressed himself in Police uniform and came to his brother''s quarter No. D. 15 in the Patulia Government quarters on his way to Durgapur; that while he was returning after the said visit to his brother''s quarter, P.W. 1 Sabyasachi called him ; that when he entered the quarter No. H. 89, he had an altercation with the said Sabyasachi who told him not to have talks with Mira and to pass by that area; that not content with the same, Sabyasachi also brought out a rifle kept in the corner of the bedstead ; that the accused at once caught hold of the top of the rifle; that a scuffle ensued for two or three minutes followed by the sound of a bullet-shot; that as soon as the bullet was shot, Sabyasachi threw away the rifle and assaulted him; that as a result he was left unconscious in the courtyard; and that he did not know what happened thereafter. Thirtyfour witnesses were examined on behalf of the prosecution and a large number of documents were exhibited and the Additional Sessions Judge, Thirteenth Court, Alipore, 24-Parganas, by his order dated July 11, 1969, convicted the accused-Appellant u/s 302, Indian Penal Code, and sentenced him to death. He also made a reference u/s 374, Code of Criminal Procedure, to this Court for confirmation of the said sentence.

Mr. Chittaranjan Das, Advocate (engaged by the State) appearing on behalf of the accused-Appellant, made a two-fold submission. He contended in the first instance that there was no motive for the assault and the incident alleged is entirely an accident arising out of an altercation when Sabyasachi called the accused and threatened him not to speak with Mira and pass by that way; followed by a scuffle when Sabyasachi brought out a rifle from the corner of the chowki in the bedroom and the trigger of the rifle went off due to the same resulting in the unfortunate death. Mr. Das next contended that the evidence on record does not establish the participation of the accused-Appellant in the crime beyond reasonable doubt and in this context he pinpointed the fact that the accused''s name was not mentioned by P.W.I Sabyasachi before Dr. S. K. Mitra (P.W. 6) when the injured girl was taken to the hospital, arid that there is also no reference to the accused''s name in Ex. 2, a letter from the Medical Officer, B. N. Hospital, to the O.C., Titagarh P.S. Mr. Rajesh Ghosh, Deputy Legal Remembrancer, appearing with Mr. Probhat Nath Sengupta, Advocate, on behalf of the State contended that it is a dear case of murder established by evidence of no less than four eye-witnesses, viz. P.Ws. 1 to 4 and six other post-occurrence witnesses, viz. P.Ws. 7, 8, 9, 11, 12 and 13, who came to the place of the incident immediately after the occurrence as also the medical evidence of P.Ws. 5 and 6. The learned D.L.R. next submitted that the allegation about, any purported intimacy between P.W. 1 and the unfortunate victim has been ruled out by the evidence on record; and that the evidence further establishes that the accused-Appellant obtained the rifle and the ammunition from the custody of the sentry at Latbagan on fraudulent representation shortly before the occurence.

The prosecution examined 34 witnesses to establish the offence charged of them P.Ws. 1 to 4 viz. Sabyasachi Guha, Shelly Pal, Supriya Kumar Pal and Subrata Kumar Pal are witnesses to the occurrence; P.Ws. 7, 8, 9, 11, 12, 13, 17, 19 and 32, viz. Sm. Apala Pal, Sm. Sabita Rani Das, Sm. Ila Shome Choudhury, Prafulla Mondal, Baidyanath Rudra, Amalendu Chakraborty, Chittaranjan Das, Amiya Bhusan Chakraborty and Bhow Sing are post-occurrence witnesses arriving at the place after the occurrence; P.W. 5 Dr. Brojo Ballav Basak and P.W. 6 Dr. S. K. Mitra belong to the medical group--the former having held the post-mortem examination ; P.W. 10 Rabindra Nath Mukherjee is the arms expert-cum-scientific officer attached to C.I.D., West Bengal; P.W. 14 Jagannath Pandey, a Police constable, Armed forces, P.W. 15 Gama Singh, another constable in the S.A.P. 1st Battalion, P.W. 16 Narendra Mohan Newar, S.I. of Police, S.A.P. posted at Latbagan, P.W. 24 Nirode Baran Singha, who was at the time a constable in the S.A.P., 1st Battalion, Barrackpore, are witnesses to the rifle being obtained by the accused-Appellant on fraudulent representation ; P.Ws. 22 and 23 Nisith Kumar Dey and Anath Bandhu Haldar- respectively are the search witnesses; P.W. 26 Amalendu Das Gupta is the photographer ; and P.Ws. 18, 20, 21 (who drew up the F.I.R.), 25, 27 (who identified the dead-body at the inquest), 28, 29, 30, 31 (who are formal witnesses), 33 and 34 (I.O.) belong to the Police group. This completes the tally of oral evidence led by the prosecution to connect the accused-Appellant with the crime. Besides that a large number of documents including the order-sheets of the lower Court as also the offending rifle, the bullet case and head, and other bullets etc. were also exhibited. A lawyer was engaged for the defence by the State as the accused could not engage a lawyer. No evidence was adduced by the defence, but the accused gave a detailed statement in his examination u/s 342, Code of Criminal Procedure.

The first point for consideration is whether the deceased girl Mira alias Anamika Das died m a result of rifle shot injury. Apart from the oral evidence of P.Ws. 1 to 4; the eye-witnesses, who stated that the girl was shot with a rifle by the accused, and the evidence of P.W. 27 Prafulla Moulik, a constable attached at the time to the Titagarh P.S. who identified the dead-body before the doctor holding the post-mortem examination, the evidence of P.W. 5 Dr. Broja Ballav Basak, who held the post-mortem examination on the dead-body of the girl, is material. P.W. 5, who was at the time a medical officer, Police Case Hospital, Barrackpore, stated that on August 21, 1968, he held the autopsy On the dead-body of Anamika Das at about 9-45 a.m. The dead-body was brought and identified by constable No. 3161 Prafulla Moulik (P.W. 27) and constable No. 1021 Benoy Bhowmick and he found one pea-sized entry wound of a gun-shot with blackening and inverted margin at the middle of dorsum of right forearm, passing directly through and through at the volar surface of right forearm, making the wound of about %\\" below the right cubital fossa without injuring the body parts, with inverted and lacerated margins of about |"xl/6" damage to soft tissues and blood vessels. It then entered into the right chest with entry wound of about \\" x \\" margins of which were inverted and lacerated along with blackening and singeing over the right chest on 5th rib at parasternal line--damaged costo-chondral junction of 5th and 6th ribs and then passed backwards and downwards, damaged right pleura right anterior margin of right lung and caused haemorrhage into chest cavity and also perforated the diaphragm and the liver which was almost smashed up and also damaged the soft tissues of posterior wall of trunk and also fractured the 10th rib on the posterior auxiliary line and made an exit wound of about with inverted and lacerated margins. Death in his opinion was due to shock and haemorrhage as a result of the injuries stated above which was ante-mortem and homicidal in nature. The doctor further opined that nobody can survive this injury and that the gun-shot injury examined by him might have ''been caused by such bullets as these two bullets --Ex. II. He finally stated in cross-examination that death should be instantaneous in case of such injury. The aforesaid medical evidence, based on the result of the autopsy on the dead-body of the girl, which was duly identified before the doctor by two constables, including P.W. 27, who also stated that he knew the girl from before, leaves no loophole for doubt that the unfortunate girl died as a result of the rifle shot. The evidence of Dr. S. K. Mitra, P.W. 6, in this context also is that when the girl was brought to the B. N. Bose Hospital she was found dead by him. The corpus delectii has thus been established beyond reasonable doubt.

The. next point for decision is whether the accused-Appellant shot Mira alias Anamika Das with the rifle in the manner as alleged by the prosecution. In this context, we will take up for consideration the first submission made by Mr. Das that there was no motive for the assault on the part of the accused-Appellant and that the death of the girl was due to an accident arising out of an altercation. followed by a scuffle when the finger of P.W. 1 fell on and pressed the trigger of the rifle resulting in the shot hitting the victim. As to the purported absence of any motive in the present case leading on to the crime, we are unable to agree with Mr. Das. The line of cross-examination on behalf of the defence brings to light suggestions, which were denied, that P.W. 1 Sabyasachi Guha was in love with the victim girl and that being well-acquainted, with her family, he used to pay visits to their house. It was further suggested in defence that the father of Mira asked her not to talk to the accused and this was due to the fact that Sabyasachi Guha came in, between. This was also denied as being not to the knowledge of P.W. 1. In addition to this, the accused stated in answer to Q. 34 in his examination u/s 342, Code of Criminal Procedure, that there was an exchange of words between Sabyasachi and himself and he was asked not to speak with Mira and also to proceed by the way. In answer to Q. 38 as to how long the accused was acquainted with Mira, the answer was from two years ahead of the occurrence. Apart from the aforesaid materials ruling out the submission of Mr. Das as to the absence of any motive whatsoever on the part of the accused-Appellant, it cannot also be overlooked that the position in law with regard to motive is that it is not indispensably essential in every case, particularly so in a case resting not on circumstantial evidence but on quite a considerable number of eye-witnesses. It is quite true as" has been observed by'' Lord Porter in the case of Wali Mohammad v. King 53 C.W.N. 318 (321) that

Moreover though proof of motive is not essential; it is a material consideration.

but it is not indispensably essential in every case as was observed by B. P. Sinha J. (as his Lordship then was) in the case of Atley Vs. State of Uttar Pradesh, . It was observed that

the failure by the prosecution to lead evidence of motive is a material consideration, but it is not indispensably essential in every case.... Where there is clear proof of motive for the crime that lends additional support to the finding of the Court that the accused was guilty, but the absence of clear proof of motive does not necessarily lead to the contrary conclusion.

In a later case, viz. in the case of Arun Kumar Banerjee v. The State AIR 1952 Cal. 504 (509) it was held by P. B. Mukharji J. (as his Lordship then was) and N. K. Sen J. that--

Motive certainly is of great importance where conclusion rests on circumstantial evidence. But where the circumstance can lead but to one conclusion of guilt, the non-establishment of motive is not material.

We respectfully agree with the principles laid -down in the above-mentioned cases and applying the said principles we hold that in view of the considerable body of eye-witnesses leading but to one conclusion, viz. of guilt the question "of motive is not indispensably essential in this case. In an event, as we have already found, there are materials on the record relating to the presence of a motive.

Coming now to the evidence on the record to ascertain whether on merits the offence charged against the accused has been established, we will first of all refer to the group of eye-witnesses consisting of P.Ws. 1 to 4. P.W. 1, Sabyasachi Guha, stated unequivocally that immediately after entering into the room the accused-Appellant.fired at Mira with his rifle and she fell down on the floor. He identified the accused on the dock. He also referred to the scuffle that ensued for snatching away the rifle from the hands of the accused and as to how he could disarm the accused with the assistance of P.W. 11 Prafulla Mondal and others. He further stated that the rifle produced in Court is like the one with which the accused killed Mira and that at the time the said accused was wearing the trousers, the half shirt, the white keds as also the belt with bayonet and cap (Ex. I collectively). He denied that he was in love with the girl and further denied that due to scuffle his hand or finger fell on and pressed the trigger of the rifle resulting in the firing of the shot. P.W. 2 Shelly Pal is the daughter of the head constable Chintaharan Pal. She corroborated P.W. 1. Her evidence is that the accused jumped into the room and at once shot at Mira with his rifle. She identified the accused on the dock. She denied that the deceased used to gossip with P.W. 1 and deposed to P.W. 1 catching hold of Dilip. P.W. 3 Supriya Kumar Pal, the son of Chintaharan, also corroborated P.W. 1. He identified the accused on the dock and stated that he killed Mira Das by rifle shot at.about 8 in the night on Tuesday, August 20, 1968, at the verandah of their house. He further stated in cross-examination that there was no scuffle between the accused and P.W. 1 before the death of Mira. P.W. 4, the last eye-witness, is another son of Chintaharan and he stated that Mira was shot dead by the accused on the dock with a rifle at their place in the evening of August 20, 1968. P.W. 1 who was lying ill on the bed got up and caught hold of the accused. He stated in cross-examination that he saw Dilip in the area on many occasions. Mr. Das submitted in this context that P.Ws. 2, 3 and 4, stated to be aged about 12, 11 and 9 years respectively, are child witnesses whose evidence of corroboration is not reliable. The imprimatur of judicial decision does not warrant such an absolute proposition and the credibility of such child witnesses must depend on the facts and circumstances of each case. One such test, as laid down, is that all such evidence is unsafe unless immediately available and unless received before any possibility of coaching is eliminated. It was held in the case of Rameshwar Vs. The State of Rajasthan, by Vivian Bose J. ''delivering the judgment of the Court that--

In my opinion, an omission to administer an oath, even to an adult, goes only to the credibility of the witness and not his competency. The question of competency is dealt with in Section 118-- Every witness is competent unless the Court considers he is prevented from understanding the question put to him.

Section 13 of the Oaths Act provides that no omission to take any oath shall render inadmissible any evidence etc. It was further held by the Supreme Court that--

It is desirable that Judges and Magistrates should always record their opinion that the child understands the duty of speaking the truth and state why they think that, otherwise the credibility of the witness may be seriously affected, so much so, that in some cases it may be necessary to reject the evidence altogether. But whether the Magistrate or Judge really was of that opinion can, I think, be gathered from the circumstances when there is no formal certificate.

In his order dated June 18, 1968, the Additional Sessions Judge, Ali-pore, however recorded as follows:

the following child witnesses are examined on oath as they are found not to be incompetent to testify arid to understand the nature and consequence of an oath.

The names of P.Ws. 2, 3 and 4 have been recorded thereafter as having been examined, cross-examined and discharged. The learned Judge further found in his judgment that--

I conclude that the child witnesses are fully competent and dependable and they have as such dependably corroborated the witness Sabyasachi in proving that it is this accused who shot Mira-with his rifle at the time and place.

It also appears from the evidence that P.W. 2 Shelly Pal is a student in class v. of the Patulia Girls'' School and her brother P.W. 3 Supriya is also a student. P.W. 4, the other brother stated to be aged about 9 years, also read in class. v. and he was examined by the I.O. along with P.Ws. 2 and 3 that very night in their ghar. The evidence of these child witnesses was immediately available and received before any possibility of coaching. In any event, the present case does not depend upon the testimony of the child witnesses alone but mainly on the evidence of P.W. 1 Sabyasachi Guha, corroborated by no less than nine post-occurrence witnesses, viz. P.Ws. 7 to 9, 11 to 13, 17, 19 and 32, who arrived at the place of occurrence shortly after the incident; five other witnesses, viz. P.Ws. 14 to 16, 24 and 32 relating to the service rifle No. 216 (Ex. II) as also the ammunition, viz. as to how it was fradulantly obtained by the accused shortly before the incident from the custody of the sentry at Latbagan on the representation that he had been asked to go to Durgapur and that the rifle and ammunition were required to be redeposited with the magazine before he left for Durgapur; and also by other material circumstances which will be duly considered in their proper context. On an appraisal of the evidence of the witnesses to the occurrence, we have no reason to disbelieve the same and we hold that the same establishes that the accused shot the victim girl, Mira Das, with a rifle in quarter No. H. 89 at about 8 p.m. on August 20, 1968.

The next group of witnesses is the post-occurrence group arriving at the place of occurrence immediately after the incident. P.W. 7 Sm. Apala Pal is the mother of P.Ws. 2 to 4 and the sister of P.W. 1. Her evidence is that on hearing the sound of a gun-shot from her house and the cries of her children, she came back there from the neighbouring house of P.W. 9 Ila Shome Chowdhury, where she was and found Mira lying in a pool of blood on the verandah and the accused trying to escape and a scuffle going on between him and P.W. 1 in the courtyard. She helped her brother to catch Dilip and she stated in her cross-examination that her brother did not know Dilip before. The next witness in this group is P.W. 8 Sabita Rani Das, the mother of the unfortunate girl. Her evidence is that on hearing a sound of gun-shot she ran to the house of P.W. 7 and found Mira lying there in a pool of blood and groaning in the verandah of the house. She further saw the accused scuffling with P.Ws. 1 and 7; and that Prafulla Mondal and others came and helped in catching Dilip. P.W. 9 Ila Shome Chowdhury, to whose house P.W. 7 had gone at about the time of the incident, stated that she heard a gun-shot when P.W. 7 was in her house and hearing the same she ran to latter''s house. Going'' there, she found Mira lying in a pool of blood and she died as soon as some water was put into her mouth. She further had seen P.W. 7 helping P.W. 1 to catch hold of the accused. She had witnessed also the scuffle. The next witness in the group is P.W. 1 Prafulla Mondal, who is an employee in the American Refrigerator Company living at quarter No. G. 4, Patulia Government quarter. On hearing the sound of a gun-shot from quarter No. H. 89, which lies to the south of his quarter, he came out and entered quarter No. H. 89. He found there a girl lying in a pool of blood on the verandah of the house and a boy catching hold of a man in-Police uniform with a rifle in hand. The man in Police uniform tried to shoot at him, but he somehow caught hold of his gun and managed to snatch away the same as also the bayonet fastened to his belt. He identified the rifle, the knife and the dress (Exs. I and II series) produced in Court, to be like those with the accused or on his person. He also identified the accused on the dock. His quarter is only 15 to 16 cubits away from quarter No. H. 89. The next witness P.W. 12 Baidya Nath Rudra, a constable, heard the sound of the gun-shot at about 8 in the night on August 20, 1968, and proceeded to quarter No. H. 89 where he found Mira lying on the verandah and the accused in the courtyard in Police uniform. He took custody of the rifle from Prafulla Mondal. P.W. 13 Amalendu Chakraborty is a Nayak, S.A.P., 2nd Battalion. On being informed he rushed to the place of occurrence in company with constable Sitaram Singha Roy and reaching quarter No. H. 89 he found a girl lying in a pool of blood and unconscious on the verandah of that quarter and constable Dilip (the accused), whom he identified on the dock, lying.in the courtyard. He found the service rifle No. 216 placed against the wall in the ghar near the door. The evidence of P.W. 17 Chittaranjan Das, another post-occurrence witness, is to the effect that in the evening of August 20, 1968, at about 8-30 p.m. when he was coming out of his, brother''s house in the Patulia Government quarter No. H. 66. He heard a row and going to the house of occurrence he found the girl bleeding and sitting in the verandah and held by another woman. He thereafter ran to the camp and informed P.W. 13 Nayak Amalendu Chakraborty of the S.A.P., 2nd Battalion. The next witness in this group is P.W. 19 Amiya Bhusan Chakraborty, an Inspector, H.Q. S.A.P., 1st Battalion, Barrackpore He was informed by a constable at about 8-45 p.m. on August 20, 1968, that an accident by rifle shot happened in Patulia quarter. Hearing that he went to the office and informed the Commander and under his direction and in company with the Assistant Commander he then proceeded to the Patulia Government quarter. Proceeding there he found that the than officers had already arrived and that a dead girl in a pool of blood was lying in the house of head constable Chintaharan Pal. He also found a rifle lying there as also the accused Dilip Singh lying flat in the courtyard. The last witness in this group is P.W. 32 Bhow Singh, an Inspector, S.A.P 1st Battalion at Patulia. He stated that at the time of roll call at about 8-30 p.m. on August 20, 1968, S.I. Narendra Newar (P.W. 16) reported to him about the shortage of one rifle and ammunition. In the meantime, on receiving information he reached the office and was directed to go to Patulia. On reaching the quarter concerned he found blood in the verandah and the accused lying in the courtyard of that house. He also found the rifle inside the ghar with ammunition. The number of that rifle was 216. He indentified the rifle as rifle No. 216 (Ex. II). This completes the tally of the post-occurrence witnesses arriving at the place of occurrence. Their evidence is clear and convincing and we find no reason to disbelieve their version of occurrence.

The next group of witnesses relates to the service rifle (Ex. II). This was seized from the place of occurrence by the I.O., P.W. 34, on the basis of the seizure-list (Ex. 9/B). P.W. 23 Anath Bandhu Haldar, a witness to the seizure-list, proved the same. The I.O. further seized one fired bullet-head and one fired bullet-case of 303" calibre with inscription ''KFSPA 65'' and other unused bullets with special inscription mark on the basis of the seizure-list referred to above. These were sent in sealed covers through P.W. 31 constable Ketabuddin Ahmed to the Arms expert, P.W. 10 Rabindranath Mukherjee. On firing the two test cartridges, which were live ammunition for use in this rifle sent by the I.O., through this rifle he opined, after microscopic examination of the marks on the basis of the test cartridges fired by him and the marks on the fired bullet-case sent to him, that the marks were the same. He found also the barrel of the rifle to contain rusty deposits of firing and the same was found to be in working order on test. The witnesses in this group relating to the rifle are P.W. 14 Jagannath Panday, P.W. 15 Gama Singh, P.W. 16 Narendra Mohan Newar, P.W. 24 Nirod Baran Sinha and P.W. 32 Bhow Singh. We have already referred to the evidence of P.W. 32. P.W. 14 Jagannath Panday is a Police constable of the Armed forces stationed at the material time at Latbagan. He had sentry duty there between 7 and 8 p.m. on August 20, 1968. He stated in his evidence that between 7-30 and 8 p.m. the accused Dilip Singh came to him and stated that he had been asked to go to Durgapur and so requested him to return the rifle and the ammunition to the said accused for redepositing the same at the magazine. He showed him the command certificate. The accused refused at first but, on his repeating the request, referring to his position as a constable and the dress he was putting on, he Was allowed to pick up the rifle with ammunition and went away. The next witness P.W. 15 Gama Singh is also a constable in S.A.P. 1st Battalion. He had stand-by duty on August 20, 1968. He stated that he got a rifle and 30 rounds of ammunition from magazine and the number of the rifle was 216. He took delivery on signing the allotment register. He also stated that he kept the same in No. 4 building in charge of a sentry, and that at the time of the roll call at 4 p.m. he had with him that rifle with ammunition. At the time of the second roll call," however, at about 8-30 p.m. the rifle and ammunition were found missing though all others were found correct and intact. The next witness in this group is P.W. 16 Narendra Mohan Newar, S.I. of Police, S.A.P., posted at Latbagan. He stated that on August 20, 1968, there was a roll call at 8-30 p.m. and it was reported to him by the Havildar that a rifle was found short. On enquiry, he found rifle No. 216 and 30 rounds of ammunition with bayonet etc. issued to constable No. 600, Gama Singh, missing. The last witness in this group is P.W. 24 Nirod Baran Sinha, who was posted at the time as a constable of S.A.P. I, Barrackpore. He stated that he had stand-by duty on August 20, 1968, and at about 8.5/8.10 in the night he went to sentry Jagannath Panday (P.W. 14) to deposit his rifle, cartridges and belt. Jagannath told him then that one man had gone to Durgapur and the said man had taken away his rifle and cartridges and further asked him to inform the Havildar accordingly. He, accordingly, informed the Havildar Dharam Nath Panday. The evidence of the above-mentioned witnesses in this group brings to light the fact that the "accused managed to secure the rifle in question by fradulently taking it from the custody of the sentry at Latbagan on the representation that he had been asked to proceed to Durgapur and that the rifle and the ammunition were required to be redeposited to the magazine before he left for Durgapur and that the rifle and ammunition were taken shortly before the occurrence.

On behalf of the defence it was further submitted that in Ex. 2, the copy of the letter which P.W. 6 Dr. S. K. Mitra, M.O. of B. N. Bose Hospital, sent to Titagarh P.S., the name of the assailant is not mentioned. In his cross-examination the said witness stated that Sabyasachi did not tell him the name of the assailant when he made that statement at 8-50 p.m. Long before going to the hospital, however, P.W. 1 stated to P.W. 12 Baidyanath Rudra, a constable of S.A.P., 2nd Battalion, that the accused Dilip had killed the girl. In view of this and also in view of the considerable body of evidence as to the assailant being Dilip, the omission referred to above in Ex.2, is not material.

On a consideration of the above evidence we hold that it has been established beyond reasonable doubt that it is the accused-Appellant Dilip, who had shot at the victim girl Mira with a bullet from service rifle No. 216, marked as Ex. II, causing injury at her right chest and lung and causing her death thereby. The point that now abides our consideration is whether the accused committed the murder within the ambit of Section 300 of the Indian Penal Code. The weapon used is a service rifle of high potency aimed and shot at the right chest of the victim girl from a close quarter. This was done by the accused immediately after entering the room and following the girl. The rifle was also obtained, on fraudulent representation on the sentry at Latbagan, shortly before the incident. All these facts and circumstances leave no scope for doubt that in doing the act of shooting and of causing the death of the girl Mira alms Anamika Das, the accused only intended to cause her death. The medical evidence is that nobody can survive the injury caused. The act of the accused does not, therefore, come within any of the exceptions enumerated u/s 300, Indian Penal Code.

The last point for consideration is the question of sentence I which was pressed by Mr. Das on behalf of the accused-Appellant. The steps of Mr. Das''s reasoning in this context are that the accused-Appellant is young in age and at the threshold of his career; that he was labouring under a sense of frustration over a love affair with the victim girl; and that there has been a considerable delay between the passing of the sentence of death by the Court of Sessions and the final order going to be passed by this Court. The learned D.L.R. left the quantum of sentence to the discretion of the Court. As to the age, in his statement u/s 342, Code of Criminal Procedure, the accused''s age has been stated to be 22 years. It is quite true that he is not a child, but it is equally true that he is young and aged only 22 years. As to the sense of frustration, a reference may be made to the statement u/s 342, Code of Criminal Procedure, and the defence suggestions to the prosecution witnesses. In answer to Q. 38, in the examination u/s 342, Code of Criminal Procedure, the accused admitted that he was acquainted with Mira from two years ahead of the occurrence. In answer to Q. 34, the accused stated that P.W.I Sabyasachi had called him at the material time to his place where there was an exchange of words followed by an order directing the accused categorically not to speak with Mira or to pass by that way. The line of cross-examination again to P-W. 1 brings to light the defence suggestion, though denied, as to whether the father of Mira asked her not to talk to the accused Dilip; whether this was because Sabyasachi had come in between the girl and the accused; and whether Sabyasachi knew that the accused was in love with the girl. The materials on record do not rule out a sense of frustration over a love affair and a consequent loss of balance of mind. The third step of Mr. Das''s reasoning is the delay caused since the passing of the sentence of death by the Court below and its impact on the ultimate sentence to be passed. It appears from the record that the order of conviction and the sentence of death was passed by the Additional Sessions Judge, Thirteenth Court, Alipore, on July 11, 1969, and the accused-Appellant has been for over more than two and half years under the fear of sentence of death, causing thereby a considerable mental agony. A reference in this context may be made to the case of Autor Singh v. Emperor 17 C.W.N. 1213 (1221) wherein on a difference of opinion between Stephen J. and D. Chatterjee J., the third Judge Carnduff J. to whom the case was referred to, observed that

the question of sentence has however caused me much anxious thought.... I am oppressed by the feeling that the Appellants have through no fault of theirs had these capital sentences suspended over their heads for nearly six months

and in that view altered the sentences of death into sentences of transportation for life as provided for under the Code before amendment. The next case that may be referred to in this context is the case of The Emperor v. Dukari Chandra Karmakar 33 C.W.N. 1226. There was a difference in opinion between Cuming J. and S. K. Ghose J. and the case was referred to a third Judge. This was also a case before the amendment. C. C. Ghose J., the third Judge, observed that--

In my opinion, the circumstances present on the record are of such a nature that I feel abundantly justified in taking the view that a sentence of transportation for life would meet the ends of justice in this case. I feel no doubt whatsoever that the accused was labouring under a serious grievance which was not unnatural in the circumstances disclosed on the record

and ultimately directed that the prisoner be sentenced to transportation for life. Mr. " Chittaranjan Das appearing on behalf of the accused-Appellant referred to a recent Supreme Court case of Vivian Rodrick Vs. The State of West Bengal, , where S. M. Sikri C.J. delivering the judgment of the Court observed:

It seems to us that the extremely excessive delay in the disposal of the case of the Appellant would by itself be sufficient for imposing a lesser sentence of imprisonment for life u/s 302.... The Appellant has been for more than 6 years under the fear of sentence of death. This must have caused him unimaginable mental agony

and ultimately awarded a sentence of imprisonment for life in place of the sentence of death. The period of delay in the decision by the Supreme Court is undoubtedly greater, but the principle, as considered in all these cases, is the same and we respectfully agree with the same.

We have given our anxious consideration to the question of sentence. As was observed by the third Judge C. C. Ghosh J., in the case The Emperor v. Dukari Chandra Karmakar 33 C.W.N. 1226 (1234):

The question of appraising the sentence to be passed on a prisoner is at all times a difficult one.

The observations of S. K. Ghose J., one of the dissentient Judges in the aforesaid case, may also be considered in this connection, viz. the Indian Penal Code simply provides alternative punishment and there is nothing which takes away from the Court the duty to see that in a parties case the punishment fits the crime. That I consider to be the true measure.

It is pertinent in this context to refer to the observations by Dr. P. K. Sen in his Treatise on Penology Old and New (Tagore Law Lectures, 1929) that--

Hunger, privation, previous association and environment, instinctive and perhaps irresistable passion might have swept the offender off his feet and led to the commission of the offence.... Often and often, the Jury has by its verdict shown its resentment at what may be called the obsession of justice by the law which has ceased to reflect the social conscience of the days.

We agree with the said observations and, on a consideration of the facts and circumstances referred to above we hold that the ends of justice would be met if, instead of extreme punishment, a sentence of imprisonment for life be passed.

In the result, we refuse to accept the Reference and we dispose of the connected Appeal by upholding the order of conviction of the accused-Appellant u/s 302, Indian Penal Code, and altering the sentence of death passed thereunder to one of imprisonment for life.

A.K. De, J.

I agree.