Bishnu Prasad Sinha & Anr vs State Of Assam

Appellants were charged with and convicted for commission of offences under Sections 376(2)(g), 302 and 201 read with Section 34 of the Indian Penal Code, 1860 for rape and murder of one Barnali Deb @ Poppy (the deceased), a 7-8 year old girl. She was travelling with her parents Bishnu Deb (father-P.W.23), Anima Deb (mother- P.W.22) and younger brother in a private transport service known as Net Work Travels from Dharmanagar (Tripura). They were on their way to Dimapur in the State of Nagaland. They reached Net Work Travels' Complex at Paltan Bazar, Guwahati at around 10.30 p.m. on 12.7.2002. There was no connecting bus to Dimapur at that time. They were advised to stay over for the night at Guwahati. Appellant No.1 was a night chawkidar of the waiting room of the said Net Work Travels. He represented that they could stay there for the night and therefore should not have any apprehension in regard to their safety. Their luggage was carried by the appellant No.1 to the waiting room. The waiting room had two openings. It was covered by grills. Only the front gate was open, which was kept under lock and key, the key whereof was with the appellant No.1.

The family of P.W.23 went out for dinner and came back to the said waiting room. He and both his children slept. Anima Deb (P.W.22), mother of the deceased, however, kept on sitting. Appellant No.1 insisted on her repeatedly that she should go to sleep stating that as the waiting room would be locked, there was nothing for her to worry about. As she had not been sleeping, the appellant No.1, allegedly, scolded her to do so. At that time, a bus bearing No.AS-25-C-1476 arrived at the said bus stop. Putul Bora - Appellant No.2 was the 'handiman' of the said bus. While the Manager, Driver and the Conductor slept in the said bus, he did not. He was seen talking with the appellant No.1.

Anima Deb-P.W.22 slept for a while. As her son had cried out, she woke up at about 3 p.m. She did not find Barnali. A hue and cry was raised by her. Being attracted by her alarm, Bishnu Deb-P.W.23 also woke up. They requested the appellant No.1 to open the gates of the waiting room. He showed his reluctance at the first instance. He was thereafter told about the missing of the girl. On being so informed, he opined that she might be somewhere else within the room. A search was carried out in the three buses, which were at the bus stop belonging to the travel agency. Near- about places as also the railway station were searched. The bathroom situated in the said premises was also searched.

Shri Kapil Kumar Paul-P.W.2, the Cashier of the Net Work Travels was informed about the missing of Barnali Deb. As the girl could not be found despite vigorous search, Bishnu Deb, the father of the girl was advised to inform the police. A missing entry was lodged before the Officer-in- Charge of Paltan Bazar Police Station. At about 8.30 a.m. on 14.7.2002, a complaint was made that the flush in the toilet was not working. P.W.7- Amar Deep Basfore (sweeper) was asked by P.W.2-Shri Kapil Kumar Paul to find out the reason therefor. He later on opened the septic tank and saw the head of a small child. He immediately reported the matter to P.W.1-Shri Bidhu Kinkar Goswami as well as P.W.2-Shri Kapil Kumar Paul.

A First Information Report was lodged thereafter by Shri Bidhu Kinkar Goswami, the Manager of Net Work Travels. In the said First Information Report, apart from the appellant No.1, suspicion was raised about the involvement of driver-Krishna Hazarika (P.W.26), conductor- Rama Hazarika (P.W.25) and the handiman-Putul Bora (Appellant No.2 herein) of the bus bearing No.AS-25-C-1476. The said bus had already left for its destination at about 6.30 in the morning. Even prior thereto, P.W.2 was persuaded that the said bus be permitted to leave early for Jorhat, which was declined.

Pursuant to the said First Information Report, a case under Sections 376(2)(g) and 302 read with Section 34 of the Indian Penal Code, 1860 was registered. A Magistrate was called. An inquest of the dead body was made. The said bus was intercepted and the driver-P.W.26, conductor- P.W.25 and Appellant No.2-Putul Bora were arrested. They were brought to the police station.

During the course of investigation, the appellant No.1 made a confessional statement before the Magistrate under Section 164 of the Code of Criminal Procedure, 1973 ('the Code' for short). He gave a vivid description as to how the offence was committed by him and the appellant No.2.

Evidently, there was no eye-witness to the occurrence in this case. Nobody had seen the appellants lifting the girl, committing rape and murdering her. The entire prosecution case is based on circumstantial evidences. The circumstances, which found favour with the learned Sessions Judge as also the High Court, are :-

v) P.W.22-Anima Deb saw both the appellants held discussion in suspicious circumstances.

vi) Despite the information that Barnali was missing, the appellant No.1 showed his reluctance to open the door. On the contrary, P.Ws.22 and 23 were told that she might be somewhere else in the room.

vii) The evidences brought on records go to show that the appellant No.1 had a nefarious plan.

viii) A black coloured half pant belonging to the appellant No.1 was seized by the police (Exhibit 3).

ix) No explanation was offered by him as to how the said half pant could be found there. It was admitted it belonged to him.

iv) P.W.3-Shri Kamal Goswami, Manager of the Travel Agency, at about 2/2.30 p.m. had suddenly felt some touch on his leg. He found the appellant No.2 climbing the upper bunker of the vehicle. He was wearing a long pant, although during his journey he was wearing only a jangia.

v) While the missing girl was searched, the appellant No.2 was found to have sustained some injuries on his face, although, no such injury/stain was noticed by P.W.3 while they were coming from Nagaon to Guwahati, which showed that the girl offered resistance before being raped.

vi) A brown coloured jangia belonging to him was recovered, which was having some white stains.

vii) He made constant pressure on P.W.2-Shri Kapil Kumar Paul to allow him to leave Paltan Bazar bus stand with his vehicle.

The bathroom as also the latrine were situated within the said premises.

The family came back to the waiting room after 10.30 p.m. The girl was found missing at about 3 O'clock. A search of the deceased was commenced. She was not found not only within the premises of the waiting room but also other nearby places.

The dead body was detected at about 9 a.m. The Manager of the Net Work Travels himself lodged the First Information Report suspecting the appellant No.1 as also the driver, conductor and the handiman of the bus bearing No.AS-25-C-1476, as having committed the offence.

P.W.4-Shri Jams Brown was the conductor of bus bearing No.AS-1- G-5990. Apart from corroborating the prosecution case in regard to the commotion emanating from the missing of the deceased, he had stated that after the missing girl was searched, the appellant No.2 came into his bus. On being questioned, he had reported that he came from bus bearing No.AS- 25-C-1476 for sleeping.

Appellant No.1's involvement in the offence stands proved beyond all reasonable doubt. Apart from his conduct, his confessional statement, which is admissible in evidence under Section 164 of the Code of Criminal Procedure, is clear pointer to his guilt. Appellant No.2's involvement is also proved. Their conduct, in particular the conduct of the appellant No.1, as has been disclosed by the prosecution witnesses is admissible under Section 8 of the Indian Evidence Act. We are, therefore, satisfied that the appellants had rightly been found guilty of committing the offence.

There is another aspect of this matter which cannot be overlooked. Appellant No.1 made a confession. He felt repentant not only while making the confessional statement before the Judicial Magistrate, but also before the learned Sessions Judge in his statement under Section 313 of the Code of Criminal Procedure.

It is, therefore, in our opinion, not a case where extreme death penalty should be imposed. We, therefore, are of the opinion that imposition of punishment of rigorous imprisonment for life shall meet the ends of justice. It is directed accordingly. Both the appellants, therefore, are, instead of being awarded death penalty, are sentenced to undergo rigorous imprisonment for life, but other part of sentence imposed by the learned Sessions Judge are maintained.

Subject to the modification in the sentence mentioned hereinbefore, this appeal is dismissed.

We must, before parting, however, express our appreciation for Ms. Makhija who had rendered valuable assistance to us.