The Standing Counsel for Bengal in the Supreme Court has started the process of filing an appeal against the Calcutta High Court order in the Kamduni rape and murder case, a senior state government official said on Saturday.
Friday’s order commuted the death sentence of two convicts, acquitted one and said three other convicts have already spent their time in jail and must be set free.
Sources in the administration said it was likely to take a few days for a copy of the order to reach the lower court and hence the process of releasing those who have been let off or acquitted would not be “immediate”.
None of the four men had been released from Presidency jail till late Saturday.
A senior official in the correctional services said if the appeal is filed in the apex court before the release of the men, the process of their release may be stalled till the matter is disposed of by the higher court.
The division bench of Justice Joymalya Bagchi and Justice Ajay Kumar Gupta had acquitted a death sentence convict.
Amin Ali, convicted by a lower court of rape, gang rape, murder, criminal conspiracy and causing disappearance of evidence and awarded the death sentence, has been acquitted of all charges.
The death sentences of Saiful Ali and Ansar Ali, who had the same charges against them, have been commuted to life in prison.
Emanul Islam, Bholanath Naskar and Aminur Islam, convicted of criminal conspiracy and disappearance of evidence, have already spent more time in jail than the maximum punishment for the charges against them, the court has said.
Emanul Islam, Bholanath Naskar and Aminur Islam, will be set free, the high court said.
The sections for which they have now been convicted carry a maximum jail
term of seven years. They have been in jail for over 10 years.
Several police officers who were part of the probe and lawyers said there were “lapses” in the police investigation, which the judiciary has cited to change Amin Ali’s death penalty to acquittal.
“The prime witness in the case did not name Amin Ali in his initial statement where he is said to have seen Ansar Ali locking the gate of the 8-bigha plot with Saiful Ali standing beside him. The witness changed his version after four months and named Amin Ali. Several other witnesses did not mention his presence on the spot where the other accused were discussing the disposal of the body,” said an officer in the probe team.
The high court said the prosecution had also failed to establish if the “scratch marks” on Amin Ali were caused with with nails of the victim.
“Unlike Ansar Ali, the injuries on Amin Ali have not been described as ‘nail scratches’ but as ‘scratch abrasions’. This also improbabilises the prosecution case that Amin Ali suffered such injuries from nail scratches of the victim when she struggled during rape,” the court order said.
Friday’s high court order also said the police and prosecution had failed to prove the charges of rape and gang rape against Emanul Islam, Bholanath Naskar and Aminur Islam. Hence the high court convicted the three men only of criminal conspiracy and
causing disappearance of evidence.
The judgement ordered the three to be “set off under section 428 CrPC” — which mentions that the period of detention undergone by the accused is to be set off against the sentence of imprisonment.