It is definitely in the fitness of things and so also entirely in order that the Circuit Bench at Jalpaiguri of the High Court at Calcutta in a most learned, laudable, landmark, logical and latest judgment titled Aftab Alam Vs. The State of West Bengal in D.R. No. 5 of 2024 With CRA (DB) 10 of 2025 With CRA (DB) 20 of 2025 and also cited in Neutral Citation No.: 2025:CHC-JP:149-DB in the exercise of its criminal appellate jurisdiction that was reserved on 28.07.2025 and was then finally pronounced on 01.08.2025 has minced absolutely just no words to make it indubitably clear that judges should not exhibit a “bloodthirsty” approach. This was held so while commuting the death sentence of a man who had been convicted of murdering his maternal uncle to life imprisonment. It must be noted that the Court was dealing with a case pertaining to Aftab Alam who was found guilty along with five others in 2023 dacoity-murder case from Dhupguri.
The Trial Court had convicted and sentenced to death Aftab Alam who was the only adult. Aftab Alam filed an appeal challenging the Trial Court judgment. The Jalpaiguri Circuit Bench upheld Aftab’s conviction but modified the Trial Court’s sentence. It imposed life imprisonment on Aftab instead of death penalty. We need to pay attention that while commuting the death penalty to life, the High Court held that mitigating factors such as Aftab’s young age (22 years at the time of the crime), lack of proof of his having any criminal antecedents and the possibility of reformation with long imprisonment, were enough to rule out imposing the death penalty. Absolutely right! No denying!
At the very outset, this brief, brilliant, bold and balanced judgment authored by Hon’ble Mr Justice Sabyasachi Bhattacharyya for a Division Bench of the Circuit Bench of Jalpaiguri of Calcutta High Court sets the ball in motion by first and foremost putting forth in para 1 that, “The Death Reference has come up before this Court for confirmation of a death sentence awarded to the appellant by a judgment dated September 21, 2024, whereby the appellant was convicted under Sections 396, 397 and 398 of the Indian Penal Code (IPC) and sentenced to death for commission of offence punishable under Section 396 of the IPC as well as to rigorous imprisonment for seven years and fine of Rs. 5,000/-, in default to suffer further rigorous imprisonment for one year for the offence punishable under Section 397 of the IPC. The appellant was further sentenced to rigorous imprisonment for seven years and fine of Rs. 5,000/-, in default to suffer rigorous imprisonment for one year, for the offence punishable under Section 398 of the IPC.”
As we see, the Division Bench discloses in para 2 that, “The appeal has been preferred by the convict against the self-same judgment and sentence.”
Tersely put, the Division Bench enunciates in para 3 stating that, “The prosecution case, in a nutshell, is that around 1:00 am on July 28, 2023, the appellant, along with five other co-accused persons, came to the house of the victims Mehtab and his wife Moumita.”
To put things in perspective, the Division Bench while elaborating on the facts of the case envisages in para 4 that, “Moumita was asleep in an adjacent room to that in which the deceased Mehtab was sleeping along with his two sons – Ayan and Rehan. Moumita suddenly woke up and found that the appellant and one other male co-accused was looming over her. They inflicted several stab wounds with knives on her, upon which she feigned death. The said accused persons, taking her to be dead, left her and went to the next room where all the assailants grabbed Mehtab and threatened his sons that they would meet the same fate if they created any trouble. Ultimately, the accused persons stabbed Mehtab several times and killed him. Moumita escaped through a window in her room and hid behind an adjacent wall.”
Delving deeper, the Division Bench then lays bare in para 5 revealing that, “After some time, a ‘Dhalai’ party, which was returning from Jaigaon in a pickup truck, passed by, when Moumita called them. At about 2:00 am, the Dhalai party found Moumita severely injured and bleeding and took her to one Ashok Roy, a neighbour, who then called one Nirod, who drove Moumita along with Abul Hussain, who was a part of the Dhalai party and the owner of the Maruti van in which Moumita was taken to the nearby Dhupguri Rural Hospital. Other local people also accompanied them. The neighbours, including Rafique, allegedly also a member of the Dhalai party, visited the place of occurrence and found Mehtab dead and his sons missing. Ultimately, it was found out that the two sons of Moumita and Mehtab had taken shelter in the house of one Ashwini Roy, another neighbour.”
Adding more to it, the Division Bench then observes in para 6 that, “While returning from the hospital after getting Moumita admitted there, the passengers of the Maruti van stopped at a tea stall at Deomali, under Police Station-Dhupguri, when they noticed the accused persons coming barefoot in muddy apparel, their hands blood-stained and covered with handkerchiefs. Being suspicious, the passengers of the Maruti van apprehended the accused persons and detained them at the Murgi Hotel, Deomali. The police was intimated and soon came to the spot and arrested the accused persons, taking them to the Police Station.”
Further, the Division Bench points out in para 7 that, “Subsequently, the accused persons were identified by Moumita, who adduced evidence as P.W.1, and her two sons, namely Ayan (P.W.2) and Rehan (P.W.3).”
Furthermore, the Division Bench then lays bare in para 8 revealing that, “Subsequently, on August 8, 2023, allegedly on the basis of leading information supplied by the appellant to the effect that he would cooperate in recovery of the weapons, the police visited a spot in the Sonakhali forest, where at around 4:30 pm, the weapons were recovered as per the information supplied by the appellant. It is the prosecution case that Rafique and Abul, respectively P.W.8 and P.W.9, were passing by and acted as seizure witnesses in respect of the said weapons and an amount of Rs. 3,500/- was also recovered from that spot, alongwith some clothes and a bag. Since the other co-accused persons were juveniles, they were sent to the Juvenile Justice Board and tried accordingly, some of them being subsequently tried as adults.”
Do note, the Division Bench notes in para 9 that, “The appellant, being the only major among the accused persons, was tried separately and was ultimately convicted on all counts and sentenced to death.”
Most significantly, the Division Bench encapsulates in para 118 what constitutes the cornerstone of this notable judgment postulating precisely that, “Article 21 of the Constitution of India, it has been judicially recognised, is not the source of the right to life but recognizes such right, which is inherent in any human being. Article 21 is couched in a negative language, to the effect that no person shall be deprived of his life or personal liberty, the exception being “according to procedure established by law”. Law, to take away the single-most important fundamental right, that is, the right to life, has to be interpreted liberally, since otherwise the interpretation would go against the very grain of whatever the Constitution stands for. Such aspect was captured in fine language by the Supreme Court in Bachan Singh v. State of Punjab, reported at (1980) 2 SCC 684, where it held that it cannot be over-emphasised that the scope and concept of mitigating factors in the area of death penalty must receive a liberal and expansive construction by the courts in accordance with the sentencing policy writ large in Section 354(3), Cr.P.C. A word of caution was put in to the effect that Judges should never be bloodthirsty and hanging of murderers has never been too good for them.”
Notably, the Division Bench notes in para 121 that, “The alteration of the names of jails from “prisons” to “correctional homes” in recent times is for a reason, reflecting the transition from the basic bloodthirsty instinct of society to take revenge to a more civilised policy of attempting to reform the accused, on the principle that one should hate the offence and not the offender.”
Quite significantly, the Division Bench then propounds in para 122 stating that, “There has been a debate throughout the world as to the retention of death sentence as a punishment, however heinous and grave the offence may be. The anti-death penalty camp argues that if deterrence is taken to be a reason of punishment, a lifetime of imprisonment is as good as a death sentence. Rather, a lifetime behind the bars, which denudes the convict of his freedom for his entire life, is a preferable form to punish him than death, which takes place in a flash.”
While continuing in the same vein, the Division Bench mentions in para 123 that, “Again, there is still scope of remorse and repentance in a person, if incarcerated over a long period of time.”
Most remarkably, the Division Bench points out in para 124 that, “Pitting the pros and cons against each other, if a person is hanged or otherwise killed by dint of a death penalty, the damage done is irreversible. Even if subsequently some new light is shed on the investigation or there is discovery of some new evidence or something to justify the reopening of investigation, there would be no chance of bringing back a life which has already been taken; thus, the death penalty is irreversible.”
It cannot be lost sight of that the Division Bench observes in para 131 that, “The learned Trial Judge observed that the crime was deliberately planned and meticulously executed which, according to the learned Trial Judge, reflected that the appellant had sufficient maturity at 22 years of age “like a veteran criminal”. The concept of the appellant being a veteran criminal was entirely the brain-child of the learned Trial Judge, with due respect, since the planning behind the attempted dacoity in the present case was extremely “unprofessional” (if one can use the expression in the context) and immature.”
What also cannot escape our attention is that the Division Bench also points out in para 132 that, “As the turn of events went, the appellant, along with other five co-accused, resided for some days in the vicinity of the PO in a hotel where at least the appellant checked in with his own Aadhar Card, which no “veteran criminal” would ever do.”
It cannot go unnoticed that the Division Bench lays bare in para 133 pointing out that, “Thereafter, they ambushed the house of the victims and first attacked Moumita and thereafter Mehtab. If they were to execute a planned and professional dacoity, multiple stabbings would not be necessary and it could have been executed much smoothly. We reiterate here that the offence with which the appellant has been charged is inter alia dacoity with murder. Although dacoity has been sufficiently established, the motive behind the murder, on a stand-alone footing, if the dacoity aspect of the offence was taken out, has not been established at all. No mens rea of the appellant to murder the victim in such a brutal manner by multiple stabs, as established by the prosecution case, has been established. Thus, it was not a murder with vengeance for its own sake, but a spontaneous reaction, may be due to the unprofessionalism of the accused persons, five of whom were minor and the appellant a borderline major.”
As a corollary, the Division Bench then observes in para 134 that, “Hence, the “veteran criminal” angle and “deliberate planning” is not reflected at all from the incident.”
It is worth noting that the Division Bench notes in para 135 that, “Moreover, the accused persons, after the offence, went and hid the weapons, along with certain clothes and a meagre amount of Rs. 3,500/-, in a nearby forest. The peculiar part is that thereafter, instead of fleeing the place and going back to Delhi, they chose to saunter back casually towards Deomali, which is close to the PO, in open view of all, so that they could be conveniently nabbed and arrested. This aspect of the matter strikes any reasonable man and clearly defies the theory that the accused persons were veteran criminals or meticulously and deliberately planned the dacoity. Rather, the spontaneous nature of the offence indicates lack of planning and impulsive behaviour.”
It cannot be lost on us that the Division Bench points out in para 136 that, “The learned Trial Judge further found that the appellant has criminal antecedents. Such finding was entirely based on submissions made from the Bar by the Public Prosecutor, that too at the stage of sentencing, without any evidence in that regard coming on record throughout the trial. Moreover, no documentary evidence was produced even at the sentencing stage to substantiate such allegations. The appellant did not have any chance to refute such allegations, which were based on conjecture, without any document being produced in that regard which could have been refuted by the appellant if confronted with the same. Hence, no previous criminal antecedents of the appellant were at all proved, either in the trial or even at the stage of sentencing. Thus, such finding regarding previous criminal antecedents of the appellant was perverse.”
It would be instructive to note that the Division Bench then hastens to add in para 137 noting that, “Antecedents are an important aspect which is to be looked into at the time of deciding whether a person should be awarded the extreme measure of death penalty. It is also inbuilt in the mitigating considerations such as the probability that the accused would not commit criminal acts of violence in future, as would constitute a continuing threat to society. In the present case, no evidence whatsoever regarding any criminal antecedent of the appellant has been brought on record. As such, we have to proceed on the premise that the appellant had no criminal antecedent which could be proved in the court of law. Even if, for the sake of argument, it is assumed that there are pending cases in Delhi, the presumption of innocence applies in Indian criminal jurisprudence and a person is presumed to be innocent until proved guilty. Thus, mere pendency of cases, even if any, cannot label a person to have “criminal antecedents” as such.”
Most rationally, the Division Bench observes in para 138 that, “The other aspect taken into consideration by the learned Trial Judge for awarding the death sentence was that there was no remorse in the demeanour of the appellant throughout the trial. In this context, we cannot overlook the fact that there is nothing on record to indicate as to what is the current social status or current background of the petitioner. We are entirely unaware, at least from the materials on record, as to what financial situation or social condition the appellant was going through immediately prior to the offence. The reasons for his moving to Delhi from the victims’ house and staying there remain unexplained. We are totally in the dark about the present living conditions of the appellant. Thus, the “lack of remorse”, read by the trial court into the eyes of the appellant or into his postures, might merely be the result of the hardened and jaded mind of a person who has barely crossed the threshold of majority and is confronting the world on his own, and may not be actual lack of remorse at all. To judge whether the appellant was himself a victim of society or a cornered animal defending himself during the trial is not clear to us. Thus, just as we cannot delve into the realm of conjecture to assume that the appellant have been socially suffering and the nature of the crime was in the nature of a social statement or revolt, where the appellant sought to thrash the rest of the society notionally, we cannot also resort to surmise to arrive at the converse conclusion that he was remorseless.”
More to the point, the Division Bench points out in para 139 that, “In any event, the purpose of detention in a ‘Correctional Home’, as the name suggests, is to give psychological and sociological support to the convict to ensure that he reintegrates into the mainstream of society upon being reformed. At the stage of the trial, the alleged lack of remorse in the gestures and postures of the accused cannot be an indicator that he has reached such a brink of the abyss that he cannot be reformed further.”
It would be worthwhile to note that the Division Bench notes in para 145 that, “Previous planning is utterly absent, as evident from the post-offence conduct of the accused persons in the present case, as discussed above. Although there was brutality and depravity in the crime, it has to be considered whether such depravity or brutality is of such an extreme or exceptional nature that the life of a person should be extinguished by handing out the death penalty.”
Resultantly, the Division Bench holds in para 146 that, “Keeping on balance the aggravating circumstances and the mitigating factors in the present case, the mitigating circumstances win hands down.”
Going ahead, the Division Bench observes in para 147 that, “As discussed above, the pre-conceived notions with which the learned Trial Judge approached the sentencing process cannot be a reasonable basis of granting the death sentence to the appellant.”
What’s more, the Division Bench then holds in para 148 that, “In view of the above discussions, we are of the opinion that the death sentence handed down to the appellant should be commuted.”
Still more, the Division Bench then directs and holds in para 149 that, “Accordingly, D.R. No. 5 of 2024 with CRA (DB) 10 of 2025 with CRA (DB) 20 of 2025 are disposed of by confirming the conviction of the accused on the counts of Sections 396, 397 and 398 of the Indian Penal Code.”
It is in the fitness of things that the Division Bench holds in para 150 that, “However, the death sentence awarded in the impugned judgment in view of the offence committed under Section 396 to the appellant is commuted to life sentence for the rest of his life, without any option of premature release for 20 years, unless exceptional circumstances are made out to the satisfaction of the concerned court. Such sentence shall run concurrently with the sentences of rigorous imprisonment for seven years awarded on both counts of Sections 397 and 398 of the Indian Penal Code. Thus, seven years of the life imprisonment shall be spent as rigorous imprisonment. However, keeping in view the fact that the appellant was lastly residing in Delhi and not a local resident and no source of income of the appellant has been disclosed, the fine of Rs. 5,000/- on each count, respectively under Section 397 and Section 398 of the Indian Penal Code, are set aside.”
For sake of clarity, the Division Bench clarifies in para 151 stating that, “The time already spent by the appellant in incarceration, pre, intra and post trial, shall be set off from the term of imprisonment qua the period of 20 years of restriction regarding premature release of the appellant.”
Finally, the Division Bench then concludes by directing and holding in para 152 that, “The department shall immediately send copies of this judgment to the trial court as well as the Superintendent of the Correctional Home where the appellant is now housed, in order to ensure due compliance of the same.” Very rightly so!
Sanjeev Sirohi
