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NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION  

CRIMINAL     APPEAL     NO.1591     OF     2007   

KASHINATH MONDAL …        APPELLANT

Vs.

STATE OF WEST BENGAL …        RESPONDENT

JUDGMENT

(SMT.)     RANJANA     PRAKASH     DESAI,     J.   

1. The appellant –  Kashinath Mondal was tried by the  

Additional Sessions Judge, Arambagh, Hooghly in S.T. Case  

No.66 of 2000 for offences punishable under Sections 376 and  

302 of the Indian Penal Code (for short, “the IPC”).   Learned  

Sessions Judge convicted the appellant under Sections 376 of  

the IPC and sentenced him to suffer RI for 10 years and to pay  

a fine of Rs.5,000/-, in default, to suffer further RI for one  

year.  The appellant has also been convicted under Section

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302 of the IPC and sentenced to suffer RI for life and to pay a  

fine of Rs.10,000/-, in default to suffer RI for two years.  The  

substantive sentences are ordered to run concurrently.   

2. According to the prosecution, on the night of  

30/10/1997, complainant - Tarak Chandra Mondal was  

sleeping in his house. His house has ground plus one floor.  

There are two rooms on the first floor of the said house.  Out  

of the two rooms, one room was under the occupation of the  

appellant, who is his brother.   The adjacent northern room of  

the first floor was under the occupation of complainant’s  

daughters –  Pampa and Sampa.  The entire ground floor  

premises were occupied by members of the complainant’s  

family which includes his mother. The ground floor premises  

were enclosed by iron grills.   On the night intervening  

30/10/1997 and 31/10/1997, Sampa, the second daughter of  

the complainant had gone out to watch a video show, which  

was held very close to the complainant’s house to celebrate  

Kali Pooja.  After departure of Sampa, the entrance gate was  

closed by putting padlock. One key each of the said padlock  

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was retained by the complainant and his brother.  The eldest  

daughter of the complainant –  Pampa was alone in her room  

on the first floor.   The appellant was sleeping in his room.  His  

wife had gone to her parent’s house.  It was not possible for  

anyone to enter or leave the house without unlocking the gate.  

3. At about 2.45 a.m., Sampa returned from the video show.  

On hearing the call of Sampa, complainant’s mother opened  

the gate.  Sampa then straight away went to her room on the  

first floor.  She saw her elder sister Pampa lying dead in a  

naked condition on the floor. She started shouting.  On  

hearing her cries, the complainant and members of his family  

rushed to the upper floor.  On seeing the dead body of Pampa,  

they also started shouting.    At that time, the appellant came  

out from his room, which is situated adjacent to the room  

where the body of Pampa was lying.  The neighbours of the  

complainant also came to the place of occurrence.  Since at  

the relevant time, Pampa and the appellant were the only  

occupants of the first floor and since the exit doors of the  

house were locked from inside, the complainant firmly believed  

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that the heinous crime of murder and rape had been  

committed only by the appellant.  The complainant, then  

lodged a written complaint before O.C., Khanakul Police  

Station.  In the complaint, the complainant disclosed that his  

relations with his brother Kashinath i.e. the appellant were  

strained on account of property dispute.  He further stated  

that on a few occasions, quarrels had taken place between the  

appellant and his wife and daughters over domestic affairs and  

the appellant had threatened them of dire consequences.   

4. On the basis of the said written complaint, police  

registered a case under sections 376 and 302 of the IPC  

against the appellant and, after completion of investigation,  

the appellant came to be charged as aforesaid.  The appellant  

denied the prosecution case.  He claimed to be tried.  After  

completion of trial, learned Additional Sessions Judge,  

Hooghly convicted the appellant as aforesaid.  The appeal  

preferred by the appellant was dismissed by the High Court.  

Hence, this appeal.  

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5. We have heard Mr. Ansar Ahmad Chaudhary, learned  

counsel appearing for the appellant and Mr. Raja Chatterjee,  

learned counsel appearing for the respondent.  

6. Mr. Ansar Ahmad Choudhary submitted that learned  

Sessions Judge as well as the High Court fell into a serious  

error in convicting the appellant.  Counsel submitted that the  

prosecution case rests on circumstantial evidence.  However,  

the chain of circumstances, does not point unerringly to the  

guilt of the appellant.  It cannot be said that no other  

hypothesis but that of the guilt of the appellant is possible on  

the basis of the evidence adduced by the prosecution.  

Counsel pointed out that PW-2 Dr. Gokul Modak has, in his  

cross-examination, stated that it cannot be conclusively  

opined in the absence of any positive report of the chemical  

examiner that the victim was raped.  Therefore, the factum of  

rape is not proved.  Counsel pointed out that PW-5 Sri Kanta  

Khute, a friend of the deceased has stated in his deposition  

that friends of the deceased viz. he, Sanju Mondal and  

Subhankar used to visit the deceased and he had seen the  

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deceased at the video show on the night of the murder.  It is,  

therefore, possible that someone else entered the house of the  

deceased and murdered her.  Counsel submitted that the  

conduct of the appellant militates against any possibility of his  

involvement in the crime.  The appellant on hearing voices of  

people came to the spot of incident.  If he was guilty of  

murder, he would have run away from there.  Counsel  

submitted that the prosecution failed to obtain finger prints  

from the site of offence.  In the absence of any clinching  

evidence, the appellant cannot be convicted for rape and  

murder.  Counsel submitted that admittedly, the relations  

between the appellant and the family of the deceased were  

strained on account of land dispute.  The possibility of the  

complainant involving the appellant in a false case, therefore,  

cannot be ruled out.  Counsel submitted that in the  

circumstances, the appellant deserves to be acquitted.  In any  

case, benefit of doubt must be given to him. Mr. Raja  

Chatterjee on the other hand supported the impugned  

judgment and order.  

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7.  Evidence of PW-1 Tarak Chandra Mondal, the  

complainant, who is the father of the deceased is very  

relevant.  According to him, on the ground floor of his house,  

there are two rooms.  Similarly, on the first floor of his house,  

there are two rooms.  He stated that on the night of the  

incident i.e. on 30/10/1997, he was sleeping in the room on  

southern side of  the ground floor along with his wife PW-14  

Kanan and youngest daughter Anita.  The room on the  

northern side of the ground floor was occupied by his mother  

PW-18 Sagarika Mondal.  He stated that the verandah on the  

eastern side of ground floor was enclosed by iron grill fencing.  

The said iron grill gate was locked on the night in question.  

According to him, verandah on the northern side of his house  

was enclosed by wall with an iron grill gate.  There are two grill  

gates on the eastern verandah each fitted in front of the two  

rooms on the ground floor.  These two gates were locked on  

the night in question.  There is a similar verandah in front of  

the rooms on the first floor.  Those rooms are also covered by  

grill fencing.  The staircase on the northern side of the house  

leads to the first floor verandah.  The northern room on the  

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first floor was occupied by his two daughters viz. deceased  

Pampa and PW-17 Sampa.  The southern room on the first  

floor was occupied by the appellant. The staircase landing on  

the first floor is situated near the northern room, which was  

occupied by his two daughters.  The said staircase leads to the  

roof of the said house.  At the landing of the staircase on the  

roof, there is one grill gate.  The said grill gate was locked at  

the relevant time.  The situation of the house and the  

description of the locking arrangement deposed to by PW-1  

Tarak Chandra Mondal is important because it establishes  

that at the relevant time, when the offence is stated to have  

been committed, all the gates of the house were locked from  

inside.  It must be stated here that this case of PW-1 Tarak  

Mondal is supported by his wife PW-14 Kanan Mondal, his  

second daughter PW-17 Sampa and his mother PW-18  

Sagarika Mondal.  They have stood the test of cross-

examination very well.   

8. PW-1 Tarak Mondal further stated that in the night of  

30/10/1997, the appellant alone was present in the southern  

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room of the first floor. His wife had gone to her father’s place.  

A video show was arranged on the occasion of Kalipuja near  

his house.  His second daughter PW-17 Sampa had gone to  

the show and deceased Pampa was alone in her room situate  

on the northern side of the first floor.  He further stated that  

all the members of his family had gone to bed at about 9.00  

p.m.  At that time, he saw the appellant going upstairs after  

locking the entrance gate.  At about 12 O’ clock in the night,  

his wife woke him up and told him that some unusual sound  

was coming from upstairs.  He told her to ignore the same as  

that might be the sound of generator, which was used for  

screening the video show.  According to him, at about 2.30  

p.m. PW-17 Sampa returned from the video show.   PW-18  

Sagarika Mondal, the mother of the complainant opened the  

south-eastern gate.  PW-17 Sampa went upstairs and raised a  

cry.  He and his wife PW-14 Kanan and his mother PW-18  

Sagarika rushed upstairs.  He found deceased Pampa lying  

unconscious on her back on the floor of her room. There were  

no clothes on the lower part of her person. He found her  

gamchha beneath her neck.  He also found marks of violence  

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on her neck.  According to him, he immediately went up and  

checked the gate on the roof.  He found that the gate was  

locked.  On hearing their cries, the appellant came out of his  

room.  On being questioned, the appellant who was fumbling  

stated that he was not responsible for this mischief.  PW-1  

Tarak added that his relations with the appellant were  

strained on account of property dispute.  He has been cross-

examined at length.  At the cost of repetition, it must be stated  

that his case that the house was locked from inside on the  

night in question has remained undented.  Both the courts  

have recorded this finding and we find no difficulty in  

concurring with them.   

9. As rightly held by both the courts, this is not a case  

where PW-1 Tarak can be accused of this ghastly crime.  He  

was sleeping on the ground floor with his wife and he woke up  

only after Sampa arrived.  Defence has also not come out with  

this case.  Evidence on record establishes that, at the relevant  

time, apart from PW-1 Tarak and the appellant, there were no  

other males in the house and pertinently on the first floor of  

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the house where Pampa was found raped and murdered only  

the appellant was present. Once it is held that the deceased  

and the appellant were the only persons on the first floor of  

the house and there was no possibility of anyone else entering  

the house prior to PW-17 Sampa’s arrival in the house, the  

only conclusion which can be drawn is that it is the appellant  

who was responsible for Pampa’s murder.  This conclusion is  

irresistible and is supported by the admitted strained  

relationship between the appellant and the complainant’s  

family on account of property dispute.  It is true that there is  

no eye-witness to the offence.  But, what persuades us to  

agree with the courts below is the fact that PW-18 Sagarika,  

the mother of the appellant has deposed against him.  No  

mother would ever falsely involve her son in such a ghastly  

crime.  

10. Assuming that the deceased had gone for the video show  

as stated by PW-5 Sri Kanta Khute that has no relevance to  

the prosecution case.  According to PW-5 Sri Kanta Khute, he  

had seen the deceased at the video show between 7.00 a.m.  

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and 8.00 p.m.  It is significant to note that except this witness  

no other witness has stated so.   It is also significant to note  

that PW-1 Tarak’s evidence indicates that on the fateful night,  

the family had dinner; that Pampa went upstairs after having  

dinner; that he saw the appellant going upstairs at about 9.00  

p.m. and that all of them went to sleep at about 9.00 p.m. So  

Pampa was at home at 9.00 p.m. Moreover, the incident  

occurred late in the night.  This is clear from the evidence of  

PW-1 Tarak Mondal and PW-14 Kanan.  PW-14 Kanan has  

stated in her evidence that she heard some unusual sound  

from the upper floor and she woke up her husband who stated  

that the sound must be that of the generator.  PW-1 Tarak  

Mondal has confirmed this.  The incident, therefore, took place  

at about 12 O’  clock in the night and, therefore, deceased  

Pampa being at the video show between 7.00 a.m. and 8.00  

p.m., assuming it to be true, has no adverse impact on the  

prosecution case.   

11. That death was homicidal is not denied. It was argued  

that the commission of rape is not proved.  In this connection,  

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it is necessary to have a look at the evidence of PW-2 Dr.  

Gokul Modak, who had conducted the postmortem of deceased  

Pampa.  PW-2 Dr. Modak has stated that on examination, he  

found the following injuries:

(a)3 Nos. bruises of ¼” x ¼” of the anterior aspect of  

front of the neck.

(b)Bruised discoloration over flank and back of neck.

(c) Abrasions of multiple sizes and numbers over the  

dorsum of both hands and fingers.  

On dissection, he found the following:

(a)Collection of blood along with patches of  

hemorrhages over the hyoid cartilage and neck  

muscle

(b)Hyoid bone fractured

(c)Deep Synosis in the nails of toes and fingers

(d)Lungs were congested & accumulation of fluid and  

blood

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(e)Hymen was rupture with bloody tinge.  

PW-2 Dr. Modak stated that the death of the victim was  

caused by anti-mortem rape and strangulation.  Death was  

homicidal in nature.  

12. So far as charge of rape is concerned, PW-2 Dr. Modak’s  

evidence and the finding recorded in the Post Mortem Notes  

which we have reproduced in the preceding paragraph  

establish that it is proved.  It is true that in the cross-

examination, PW-2 Dr. Modak has admitted that whether the  

rupture was old or of recent origin is not stated in the report  

and that the blood detected at the rupture site might have  

been menstrual blood.  But, he has categorically stated that  

the dimensions of the vagina of the victim do not indicate that  

she was habituated to sexual intercourse.  His opinion that  

there was rape is therefore correct and, in the circumstances,  

which we have noted hereinabove, no one but the appellant  

could have been responsible for the rape.  

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13. The appellant was arrested on 31/10/1997.  His lungi  

was seized on the same day.  Serological report (Ex-9) records  

that semen was found on the lungi.  The report further states  

that no spermatozoon could be detected in the urethral swab  

of the appellant.  This finding is not relevant because PW-6  

Mr. Debasis Som, who has clinically examined the appellant,  

has stated that he examined the appellant on 5/12/1997  

whereas the incident had taken place on 31/10/1997.  

Though the pubic hair and vaginal swab of the deceased were  

preserved and sent for chemical analysis, the report of the  

Serologist does not help the prosecution because the  

Serologist could not conduct analysis because of insufficiency  

of blood.  PW-2 Dr. Modak has stated that the evidence of  

spermatozoon in vaginal swab conclusively indicates sexual  

intercourse, but he has also stated that the spermatozoon may  

not be detected in vagina 10 hours after rape. Obviously,  

vaginal swab was chemically analyzed after a long lapse of  

time after the rape.  We have no manner of doubt that had the  

Investigating Agency obtained the samples in a scientific  

manner and promptly sent them to the Serologist that would  

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have lent further support to the prosecution.  There is some  

substance in the grievance of learned counsel for the appellant  

that the Investigating Agency also did not obtain finger prints  

from the place of incident.  But, it is well settled that  

remissness and inefficiency of the Investigating Agency should  

be no ground to acquit a person if there is enough evidence on  

record to establish his guilt beyond reasonable doubt.  It is  

said by this court in a number of cases that irregularities or  

deficiencies in conducting investigation by prosecution is not  

always fatal to the prosecution case.  If there is sufficient  

evidence to establish the substratum of the prosecution case,  

then irregularities which occur due to remissness of the  

Investigating Agency, which do not affect the substratum of  

the prosecution case, should not weigh with the court.  As we  

have already noted the only male apart from PW-1 Tarak, the  

father of the deceased, who was present on the fateful night  

with deceased Pampa in their house was the appellant.  The  

house was locked from inside.  Therefore, we have no  

hesitation in confirming the concurrent findings recorded by  

the trial court and the High Court on minute examination of  

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the evidence that it is the appellant who was responsible for  

the rape and murder of deceased Pampa.  It is argued that the  

conduct of the accused shows that he is innocent.  The  

accused did not run away from the scene of offence.  We find  

no substance in this submission.  In the facts of this case, if  

the appellant had ran away, that would have, in fact,  

weakened his case and strengthened the prosecution case.  

The decision to remain at the spot appears to be a calculated  

one.  In the circumstances, we are of the opinion that the  

prosecution has established its case beyond reasonable doubt.  

There is no merit in the case.   

14. The appeal is dismissed.  

……………………………………………..J.      (SURINDER SINGH NIJJAR)

……………………………………………..J.     (RANJANA PRAKASH DESAI)

NEW DELHI, JULY 31, 2012.  

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