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Petitioner: SUREN DAS KONAI VS Respondent: THE STATEHonorable Justice SALAHUDDIN AHMEDNorul Hoque Bhuiya,A. T. M. Masud
1969 P Cr
1969 P Cr. L J 838
[Dacca]
Before Salahuddin Ahmed and T. H. Khan, JJ
SUREN DAS KONAI AND OTHERS‑Appellants
Versus
THE STATE‑Respondent
Criminal Appeal No. 6 and Death Reference No. 1 of 1969, decided on 4th April 1969.
(a) Penal Code (XLV of 1860), S. 302-‑Murder‑Sentence-- Extenuating circumstances present in case and weighing in favour of reduction of extreme penalty of law‑Sentence of death commuted to transportation for life.
(b) Penal Code (XLV of 1860), S. 302‑Murder‑Sentence-- Old age of one accused (female) and extreme young age of another‑Cases desired to be considered by Government for purpose of reducing their sentences.
Norul Hoque Bhuiya for Appellants.
A. T. M. Masud, Deputy Legal Remembrancer and Muhammad Ali for the State.
JUDGMENT
SALAHUDDIN AHMED, J.‑This is a Reference under section 374 of the Code of Criminal Procedure by the Sessions Judge of Bogra for confirmation of the sentence of death passed on the con demned‑prisoner Suren Das Konai. There is also an appeal from their conviction and sentences by the sail prisoner and two others, namely his younger brother Khitish alias Khiten Konai and their mother Atapi Dasi alias Atapi Bala Konai. Prisoners Suren Das and Khiten have been convicted under section 302/34 of the Pakistan Penal Code and the former has been sentenced to death and the latter to transportation for life. Prisoner Atapi Dasi has been convicted under section 302/109 of the Pakistan Penal Code and sentenced to transportation for life. All the appellants have also been convicted under section 201 of the Code but no separate sentence has been passed therefore.
Both the Reference and the appeal have been heard together and they are now being disposed of under one judgment.
It would be convenient if we state at the beginning the relationship between the two deceased persons, namely, Saradasi and Saraswati and the three prisoners before us as well as some of the witnesses for prosecution. The two male prisoners are the sons and the female prisoner is the widow of late Gopi. Deceased Saradasi is the sister of late Gopi and deceased Saraswati is the daughter of deceased Saradasi, P. W. Rajubala is the wife of the condemned‑prisoner Suren Das and P. W. 3 Ramesh Konai is husband of deceased Saraswati, P. W. 2 Bilashi had been reared up from her infancy by the woman prisoner Atapi. Prisoners Suren and Khitish had arranged for the marriage of P. W. Bilashi who had been married 3/4 years back. It may also be stated here that she had been brought by prisoner Suren to the house of the latter on what is called a "Pleasure trip" and was stated to be present at the house during the occurrence.
The prosecution case may briefly be stated as follows: The three prisoners and the two deceased persons used to live in the same homestead having a common outer yard in village Utter Pechul within Police Station Sherpur in the District of Bogra. The three prisoners resided in the northern compartment while the two latter women lived in the southern compartment of the house. There was only a mud‑wall separating the two compartments. On 15‑12‑66 the two male prisoners had instituted O. C. Suit No. 184 of 1966 in the Court of a Munsif at Bogra against deceased Saraswati Dasi, her sister Sarada Dasi, P. W. 3 Ramesh Konai (husband of deceased Saraswati) and some others and had obtained an injunction against the aforesaid three defendants and one Aziz Mondal restraining them from entering or interfering with the possession of the plaintiffs with respect to three acres of the disputed land. On 3‑7‑67 the said three defendants filed a written statement (vide Exh. 3 pages 85 to 87 of the paper book) wherein among other things it was stated that the suit property was the ancestral property of the said late Gopi Das Konai, maternal uncle of deceased Saraswati and her sister, and that the plaintiffs namely, the two prisoners were the illegitimate sons of the said Gopidas and their mother Atapi Dasi was not the married wife of the said Gopidas. It was further stated that Atapi Das was unchaste and was a woman of immoral character. The Munsif held that the said suit was hit by section 6 (2) of the Disturbed persons Ordinance, and consequently the plaint was returned for presentation before the proper Court after permission of the specified authority had been obtained. This was regarded as a success by the said three defendants, and deceased Saraswati (a defendant in the said O. C. suit) started making arrangements for taking possession of the disputed land and in fact on 13th Sravan 1374 B. S. corresponding to 29‑7‑67 approached her husband P. W. Ramesh about it. On the same day which was a Sunday, deceased Saraswati and prisoner Suren had quarrelled over the matter of the possession of the disputed land and the former informed the neighbours of her intention to possess the land and also of the threatening attitude of the prisoners in this respect. The present occurrence took place on Monday 31‑7-67 corresponding to 14th Sravan 1374 B. S. at about mid‑night. It is stated that P. Ws. Rajubala and Bilashi woke up from their sleep at the barking of a dog and having found their room‑mates absent they went out and saw Saraswati in the grips of Suren and Khitish beneath the Banyan tree in the outer yard of their homestead, Suren put a napkin inside the mouth of Saraswati, and while prisoner Khitish held her by the legs, prisoner Suren slaughtered her with a dao (Exh. 1) cutting her throat. Prisoner Atapi was all the time standing by and encouraging her two sons to kill Saraswati and was abusing Saraswati by calling her as a co‑wife. Saraswati was killed in spite of the remonstrances made by P. Ws. Rajubala and Bilashi who were both threatened into silence on pain of death by Suren. Saraswati's mother Saradasi (deceased), who was an old woman and one of whose legs had been paralised, came out of her but and in vain cried out asking the assailants not to kill her daughter. After having slaughtered Saraswati the two male prisoners turned their attention to Saradasi and took her inside her but and killed her there. It is stated that prisoner Suren throttled Saradasi and kicked her on her chest and prisoner Khiten also took part in killing her. The two brothers then returned to the place where Saraswati had been killed and put her dead body into a sack which was tied with a rope. The sack and the rope had been supplied by the woman prisoner Atapi. Prisoner Suren then cut a bamboo from the nearby cluster and fixed on it the sack containing the dead body of Saraswati. The three prisoners scarped the blood of Saraswati from the place where she had been killed and threw the same in a nearby land filled with water and washed the site of the murder. Thereafter the two brothers carried away Saraswati's body towards the north and their mother Atapi followed them to some distance and then returned ho me. It appears that on hearing the barking of the dog, some of the neighbours, namely, P. W. 5 Anath Pramanik, P. W. 8 Arjun alias Arja and P. W. 9 Rashik (he was merely tendered and not cross‑examined) cattle towards tile house of occurrence.
The three persons met them on the way and on enquiry by P. W. Anath about the cause of the barking of the dog, they were told that there was no noise and there was no reason for c he dog to bark. There witnesses apparently but rather curiously felt satisfied with the answer and they all returned to their respective homes. On the following morning when P. W. 4 Mano Dasi came to the but of the two deceased some for the purpose of obtaining repayment of a loan of rice given to deceased Saraswati earlier the witness found the door of the but closed and having opened it found the dead body of Saradasi lying in the but and Saraswati absent from the hut, P. W. Manadasi went and reported the fact to the neighbours P. Ws. Anath, Rashik and others and the neighbours came to the house of the deceased women and saw the dead body of Saradasi there and did not find Saraswati in the house. P. W. Anath questioned the three prisoners as to how Saradasi died and Saraswati was absent from the house without the knowledge of the three prisoners and how was it that only on the previous night the prisoners had said that the dog barked for nothing. At this the two male prisoners remained silent but their mother Atapi Implored P. W. 5 to save her two sons saying that what had happened had already happened. At the bidding of P. W. Anath, prisoners Suren and Khitish went and informed deceased Saraswatis husband P. W. 3 Ramesh Konai and her sister's husband P. W. 15 Naren. P. Ws. Ramesh and Naren arrived it the house of occurrence about midday and to P. W. Ramesh's query about what had happened, prisoner Atapi retorted, that Ramesh's wife Saraswati was of bad character and some of her associates might have done all that and that Atapi and her Family had no reason to know about the matter. P. Ws. Ramesh, Anath and Rashik accompanied by P. W. Nareen and prisoner Suren started for lodging information and the police station but having proceeded for about a mile, prisoner Suren refused to proceed further and left the company. A first information report was lodged by P. W. Ramesh at the police station three miles away from the place of occurrence on 1‑8‑67 at p.m. In the meantime the three prisoners left their home in the afternoon. P. W. Rajubala was taken away by her aunt who is wife of P. W. Rashik to the latter's house nearby. P. W. Bilashi too, left the house at night out of panic and went to the house of her neighbour, namely, Komola's mother and thereafter the witness went to her husband's home at Gohail. When P. W. Ramesh returned to the house of occurrence accompanied by P. W. 19 A. S. I. Md Tayebur Rehman they aid not find any of the inmates including the witness there. An inquest was held on the dead body of Saradasi on 2‑8‑67 and he was despatched to Bogra morgue for autopsi. P. W. 21 the Officer in charge of the police station, Mr. Badiruddin Ahmad, took over investigation of the case on 2‑8‑67 and arrived at the place of occurrence the same day at 7‑30 a.m. and found the outer yard of the house of occurrence washed. He examined P. Ws. Ramesh, Mano Dasi and some other witnesses on the same day and P. Ws. Anath Pramanik, Arja and some others on the next day. P. W. Rajubala was examined on 6‑8‑67. This officer tried to arrest the accused persons but did not find them. On 5‑8‑67 P. W. Ramesh found the mutilated dead body of his wife Saraswati in the Aus paddy field of one Kina Fakir situated to the north of the village. The soft portion of the dead body had been almost eaten up by carnivorous animals. An inquest was held upon this dead body which was identified by P. W. Ramesh (thousand of deceased. Saraswati). On having received certain information the investigating officer found prisoner Apati concealing near a bush beside a pond about quarter of a mile to the south of her house and she was arrested on 6‑8‑67 at 11 a. m. Atapi was taken to the house of occurrence and a dao Exh. 1 and logs of bamboo Exh. VI were seized from the house. P. W. 21 learnt about the whereabout of P. W. Rajubala from prisoner Atapi and he examined Rajubala at the house of her uncle‑in‑law P. W. Rashik on 6‑8‑67 P. W. 21 was transferred on 30‑8‑67 and he made over charge to P. W. 20 Mr. Muhammad Ali. P. W. 20 perused the records and examined P. W. Bilashi on 8‑10‑67 and submitted a charge‑sheet against the accused persons on. 21-10‑67. A preliminary enquiry having been held by a 1st Class Magistrate the three prisoners were sent up for trial, before the Sessions Court on charges under sections 302/34, 302/109 and 201 of the Pakistan Penal Code which resulted in their conviction and sentences as mentioned above.
The three accused persons pleaded not guilty and denied; having committed any of the offences they have been charged with. It was stated by the defence that deceased Saraswati was a woman of easy virtues and that she had been divorced by two husbands before she was married to P. W. Ramesh. It was alleged shat Saraswati and extra‑marital sex‑affairs with, P. Ws. Anath, Arja and Rashik, and that she had also amorous, relations with Muslim youngsters of the locality. During, the absence of her husband Saraswati held promiscuous: gatherings at music parties and on account of this conduct her husband had quarrelled with her and left his home some days before the occurrence. It was further alleged that due to Saraswati's amorous relationship with Muslim youngsters. P. Ws. Anath, Arju and Rashik become jealous and they took Saraswati out and ravished her to death and that as her mother had knowledge about their act, the three witnesses returned home after killing Saraswati and killed her mother as well to screen themselves. The defence has also alleged that P. W. Rajubala, too was bad of character and that her mother and uncle used her for immoral purposes before her marriage with prisoner Suren. Suren having come to know of this could not tolerate her and beat her. It is claimed that Rajubala was at her mother's place and was not present at the house of occurrence at the time of occurrence. The defence also denied that P. W. Bilashi was foster‑daughter of prisoner Atapi. Furthermore, it was stated that Bilashi was in the position of a niece to deceased Saradasi and while at Uttar Pechul she stayed with deceased Saradasi. It was also claimed that she too was not in the house of occurrence during the relevant time. It was stated that Bilashi had assaulted her husband' after her marriage and did not reside at her husband's house.
Finally it was stated that both P. Ws. Rajubala and Bilashi had deposed falsely at the bidding of P. Ws. Anath, Rashik and others.
It is desirable to state here certain facts about which there is hardly any dispute. The dead body of Saradasi was found in her but on the date of occurrence, and Saraswati was found missing from her house at the time. The death of Saraswati as well as Saradasi have not been disputed; on the contrary the defence have given suggestions that they were both killed by P. Ws. Anath, Arju and Rashik. The medical evidence as furnished by P. W. 12 Dillip Kumar Horn Ray. Assistant Surgeon shows that Saradasi aged sixty years died as a result of the two following injuries which were ante‑mortem and homicidal in nature:‑
(1) Two over-laping parallel brusise 3" x 1" on the front of the mid neck present with dupening on the right below the mendibular angle.
(2) One diffused brusise about 4" x 3" on the front and right side of the upper and mid chest wall including the breast was present.
The doctor has stated that death of Saradasi was due to axphyxia which might be due to throttling and suffocation. The evidence of this doctor giving the case of the death as well as the nature of the wounds found on the body of Saradasi fully support the manner of her death as stated by the prosecution. So far as deceased Saraswati is concerned P. W. 13 Muhammad Safer Hussain, Assistant Civil Surgeon who held the post mortem examination was unable to express any opinion about the cause of her death due to the fact that the body was highly decomposed and the vital organs were missing. The doctor has stated that only a skeleton was present.
It may also be stated at this stage that so far as the death of Saradasi is concerned there is hardly any dispute as to the place, date and time of occurrence. The defence, has, however, disputed about these matters in regard to the death of Saraswati as well as about the manner in which Saradasi and Saraswati were killed. The prosecution case mainly rests, upon the evidence of two women witnesses, namely, P. W. 1 Rajubala and P. W. 2 Bilashi whose evidence has been sought to be corroborated by the evidence of witnesses. among others of P. W. 5 Anath Pramanik and P. W. 8 Arjun alias Arja.
P. W. Rajubala has stated that on the night of occurrence she had slept with her husband prisoner Suren. At mid‑night she woke up from sleep having heard the barking of dogs and found the door of the but open and her husband absent. She went out of the house and heard the cries of Saraswati's mother (Saradasi) and found Saraswati lying on the ground near the banyan tree in the outer yard and in the grips of her husband and her brother‑in‑law, Suren and Khiten respectively. A napkin had been put in the mouth of Saraswati by prisoner Suren, and while prisoner Khiten held her by the legs, prisoner Suren slaughtered her with the duo (Exh. 1) by cutting her throat. Saradasi had asked the two assailants not to kill Saraswati. P. W. 2 Bilashi and prisoner Atapi were present near the banyan tree and the latter was encouraging her sons to kill Saraswati and abused her as `Satin' (co‑wife). Suren and Khiten then turned their attention to Saradasi and having taken inside her but killed her. Suren caught her by the throat and strangled her and also kicked her on the chest. Khiten also beat her. The two brothers then put Saraswati's body into a sack supplied by prisoner Atapi. Suren cut a bamboo from the nearby clump and the sack containing Saraswati's body was carried on it by the two male prisoners towards the north followed by the female prisoner to some distance. Before taking the body the prisoners removed the blood‑stained earth near the banyan tree and washed the place. P. Ws. Anath, Arja and Rashik came at night to the place of occurrence and on their enquiry about the cause of the barking of the dog belonging to the prisoners were told that the dog barked without any reason. The next morning these three witnesses again came to the house of the prisoners on receiving certain information from P. W. Mano Dasi and having seen the dead body of Saradasi and the absence of Saraswati confronted the prisoners and recalled their reply on the previous night. At this the two prisoners kept silent while the female prisoner fell at the feet of P. W. Anath and entreated him and others to save her sons.
The evidence of P. W. Bilashi is substantially the same as that of P. W. Rajubala and need not be reiterated. P. W. Bilashi has also stated that when she and P. W. Rajubala forbade the slaughtering of Saraswati both the witnesses were threatened by Suren with slaughter. The witness left the house of occurrence on the night following the night of occurrence for the house of Kamala's mother and from there she went to her husband's house in village Gohail.
P. Ws. Rajubala and Bilashi corroborate each other on all material points.
As we have already stated P. W.
Rajubahla is the wife of the condemned‑prisoner Suren and hardly any reason exists as to why she should falsely implicate her own husband, brother‑in‑law, and mother‑in‑law. The suggestion given in regard to her character has been categorically denied not only by her, but by other witnesses to whom the suggestions were put. There is no material on the basis of which it could be said that the suggestions had any reasonable basis. It is true that she was not examined by the police until 6‑8‑67, that is about 5/6 days after the occurrence. But the explanation which P. W. 1 has given as to why she did not tell anybody about the occurrence appeared to be reasonable. P. W. 1 has stated that she had been threatened by her husband not to disclose the occurrence to anybody and consequently she was to afraid two speak about the occurrence. She has stated that when she had prohibited the accused persons not to slaughter Saraswati, prisoner Suren threatened to slaughter the witness as well if she persisted in such interference. The evidence shows that it was after her mother‑in‑law prisoner Atapi had been arrested on 6‑8‑67 and after prisoners Suren and Khiten had remained absconded for some days that she spoke about the occurrence.
Mr. Nurul Haque Bhuiya appearing on behalf of the appellants prisoners has severely criticised the credibility of P. W. Rajubala and has contended that it was highly unnatural on the part of a wife to agree to implicate her husband in such a grave offence and the mere fact that she has done so suggests that she had some motive to do so. Viewed in this light, the learned Advocate has contended that the suggestion that she wanted to get rid of her husband in order to get a better husband could not be regarded as without reasonable basis. We have already noticed that such suggestions about her character lacked any reasonable basis. The evidence shows that she was not readily available to the police and that she tried to keep silent about the entire affair for several days. It is not unlikely that the arrest of her mother‑in‑law Atapi and the continued abscontion of the two male prisoners brought about a situation in which she found it difficult to restrain herself any longer and consequently when tackled by the police, she made the statements about the occurrence and agreed to be a witness.
P. W. 3 Ramesh Konai and P. W. 8 Arjun have both stated that P. W. Rajubala had disclosed the occurrence to them and had stated that Suren and Khiten had killed Saraswati and Saradasi and that prisoner Atapi had supplied the sack in which the body of Saraswati was put and carried away. No suggestion has been put to P. W. 1 as to why she should falsely implicate her brother‑in‑law, a boy still in his teens, and her old mother‑in‑law aged fifty‑six years. The inconsistency in her evidence as to whether the body of Saraswati was put into the sack before or after Saradasi had been killed does not in our opinion affect her evidence. There are certain matters which she did not tell the investigating officer. We, however, find that none of them is material and that their omission has not affected the material part of her story. She has categorically denied the suggestion that she was not at her husband's house in the night of the occurrence or that she had been tutored to give false evidence at the house of her mother where from she was brought to her aunt's house to be a witness in the case.
The next eye‑witness P. W. 2 Bilashi, as has been noticed already, was brought up by prisoner Atapi and her marriage was arranged by the two male prisoners, Suren and Khiten. P. W. Bilashi used to come and stay with the three prisoners and in fact on the date of occurrence she was staying with them. All these show that she had reasons to be grateful to the three prisoners. There is not an iota of suggestion to show that she had any reason whatsoever to falsely implicate any one of the three prisoners. She has denied the suggestion that she was not present in the house of occurrence at the relevant time. She has also denied the suggestion that she had deposed falsely at the bidding of P. W. Anath, Rashik and others. It is true that this witness was not available for examination by the police until 8‑10‑67. Prima facie this delay in her examination is a factor against her. But having regard to the evidence that she too had been threatened and forbidden by the prisoners to speak about the occurrence to anybody and in view of the existence of reasons which made her grateful to the three prisoners, we think we shall not be justified in discarding her evidence merely because of this delay. In her case too it was likely that after Atapi had been arrested and the other two prisoners had surrendered and considerable time had elapsed since then that she found it difficult not to disclose what she had seen on the date of occurrence particularly when her name had already transpired as a witness who knew about the occurrence. That she made the statement about the occurrence implicating the three prisoners receives corroboration from P. W. 3 Ramesh. Although it is true that the name of Bilashi came out for the first time on 6‑8‑67, she was available only on 8‑10‑67 for examination by the police officer. This was probably due to the fact that P. W. Bilashi moved from place to place and that her husband's house where she was approached by the investigating officer was in another village, namely, Gohail. The evidence of Bilashi also received corroboration from the fact that she too had seen P. Ws. Anath, Arja and Rashik at the night of occurrence.
Having given our anxious consideration to the evidence of P. Ws. Rajubala and Bilashi we have found their evidence reliable. The evidence of these two eye‑witnesses further receive corroboration from certain circumstances. The investi gating officer, P. W. 21 Badiruddin Ahmad has stated that when he visited the house on 2‑8‑67, he found the outer yard of the house of occurrence completely washed. This fully supports the evidence of the two eye‑witnesses that after Saraswati had been murdered in the outer yard, the place where she had been killed was washed and the scrapings of earth thrown into a nearby land containing water. The conduct of the prisoners in putting off P. Ws. 5 and 8 off the scent by telling them that there…
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