The Calcutta High Court recently commuted the death sentence of two convicts in the 2013 Kamduni gang rape and murder case, while one person earlier convicted and sentenced by a trial court to death was acquitted of all charges. [State of West Bengal vs Saiful Ali].

In the same judgment, three others were acquitted of rape charges but convicted for entering into a criminal conspiracy to hide evidence.

The trial court's acquittal of two more persons who were booked for a lesser offence, was also upheld by the High Court.

The case related to the rape and murder of a second-year BA student of Derozio College on June 7, 2013. The incident took place while she was walking home from college along the Kamduni BDO Office Road. She was kidnapped and taken inside a factory where she was gang-raped before she died.

After raping her, the perpetrators are said to have torn apart her legs up to the navel, slit her throat and dumped her body in a nearby field.

In 2016, a sessions court convicted six persons, Saiful Ali, Amin Ali and Ansar Ali. Sk Emamul Islam, Aminur Islam @ Bhutto and Bhola Naskar @ Bholanath Naskar in the case.

Saiful, Amin and Ansar were sentenced to death for gang rape and murder. The remaining three persons were ordered to suffer life imprisonment for the rest of their life.

The convicts challenged their convictions and the sentences imposed on them before the High Court.

A division bench of Justices Joymalya Bagchi and Ajay Kumar Gupta upheld the conviction of Saiful Ali and Ansar Ali while it acquitted Amin Ali of all charges.

The High Court found that the judicial confession made by Saiful Ali was reliable and that there was circumstantial evidence, including DNA evidence to support his statement that he had raped and murdered the victim.

The Court further dismissed Ansar Ali's contention that Saiful's confessional statement indicated that Ansar was not part of the crime. The Court reasoned that since Ansar employed and held influence over Saiful, it was likely that Saiful was trying to protect his master from the rigors of law.

"He (Saiful) may have been prompted to do so on the expectation that the more resourceful Ansar (if exonerated) would continue to support him and his family," the Court added.

The fact that Ansar held the keys to the plot where the rape took place and that he had nail scratches on his body, which indicated that he overpowered the victim in order to commit rape, also led the High Court to confirm Ansar's conviction for rape and murder.

All the same, their death sentences were set aside and they were sentenced to life imprisonment for the rest of their natural lives instead.

"I am of the opinion the trial court erred in awarding death penalty with reference to the gravity of the offence alone. State has failed to prove conspiracy and prior concert in the crime beyond reasonable doubt. It has also not led evidence to rebut the possibility of reformation and rehabilitation," Justice Bagchi said in the judgment.

The bench further noted that the conduct of these two convicts in the correctional home was satisfactory and there was a possibility of their reformation. As such, the Court opined that they should be punished with life imprisonment, a more humane substitute that adequately addresses societal concerns of recidivism.

The bench also noted that the injuries on the victim girl in this case was not as grave as the ones suffered by the victim in the Nirbhaya gang rape case, and therefore, held the death sentence was unwarranted.

"Though in the present case bruises on lips, injury in vagina and extravasation of blood in the brain were noted, doctor opined death was due to smothering and injuries in the vagina were due to forcible sexual intercourse. He did not mention the depth of the injury in the vagina nor any injury in the abdominal or pelvic parts of the victim. This shows the injuries on the victim cannot be compared with the extensive and brutal injuries noted in the Mukesh (supra) (Nirbhaya case judgment), which was one of the prime consideration for upholding death sentence in that case," the Court noted.

This does not mean that the offence of rape and murder on a defenceless girl is not a grave and heinous one, the bench maintained. Rather, the observation was only made to answer the State's argument that the present case was comparable to the Nirbhaya case.

"The Court is called upon to make this macabre comparison with regard to the nature of injuries to test the proposition advanced on behalf of the State and the complainant that the brutality of the crime deserved death penalty as in Mukesh (Nirbhaya's case)," the bench explained.

The bench also acquitted Emamul Islam, Aminur Islam and Bhola Naskar of the charge of rape on finding that there was nothing incriminating these three persons in Saiful's confessional statement. Rather, the statement indicated that these three persons were not present at the time of the rape and murder.

However, there was sufficient evidence found to confirm the conviction for entering into a conspiracy to destroy evidence in the case. They were sentenced by the High Court to 7 years of jail, but were ordered to be released once they paid a ₹10,000 fine since they had already spent 10 years in jail.

Senior Advocate YJ Dastoor along with advocates Phiroze Edulji, Sanjib Kumar Das, Sabyasachi Banerjee, Arindam Dey, Shreya Rastogi, Smarajit Basu, Amartya Kanjilal, Amitayu Kundu, Stuti Rai, Satadru Lahiri and Kaushik Gupta appeared for the appellants.

Advocates Jayanta Narayan Chatterjee, Shirsendu Sinha Roy, Moumita Pandit, Supreem Naskar, Jayashree patra, Ritushree Banerjee and Pritha Sinha appeared for the complainant (victim's brother).

Advocates Ranabir Roy Chowdhury, Md Sabir Ahmed, Sanjay Banerjee and DR Ghosh represented the State government.

[Read Judgment]