Haru
Ghosh Vs. State of West Bengal [2009] INSC 1496 (27 August 2009)
Judgment
IN THE
SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.
1173_OF 2008 Haru Ghosh .... Appellant Versus State of West Bengal ....
Respondent
V.S.
SIRPURKAR, J.
1.
Appellant herein Haru Ghosh has come up by way of this appeal,
challenging the judgment of the High Court, whereby, the High Court confirmed
the verdict of conviction, as also the death sentence awarded by the Sessions
Judge. Appellant was tried for having committed murder of one Anima Pramanik,
aged about 30 years and her son Subhankar Pramanik @ Kebal, aged about 12
years. He was also tried for the offence under Section 307-326 of the Indian
Penal Code (hereinafter referred to as "IPC" for short) for
attempting to murder one Jeevan Krishna Chakraborty, aged about 60 years.
2.
The prosecution case was that on 7.5.2005, at about 11.15 hours, a
telephonic message was received by N.C. Mondal (PW-37), an Assistant
Sub-Inspector of Nawadeep Police Station, informing that between 10.45 Hrs. and
11.10 hrs. on that day, one Haru Ghosh S/o Mohan Ghosh, staying at
Ramchandrapur Ghoshpara assaulted three persons of the said village by a sharp
cutting dao and also tried to assault others and for that, the police help was
immediately needed. The message was recorded in the General Diary vide Entry
No. 300. One Shri Amitava Ghosh (PW- 39), Inspector-in-Charge, reached the spot
immediately at about 11.25 hours. The said message was sent by Samir Ghosh
(PW-1), who narrated the incident to them. The bodies of a female and a male
child were lying near the tubewell of the house of the victims. On this basis,
the further investigation was taken up. It came out from the complaint of the
complainant Samir Ghosh (PW- 1) that he had heard some cries from the house of
the deceased and rushed only to find the appellant/accused strangulating
Subhankar Pramanik. On the intervention of the complainant, Subhankar was
released from the clutches of Haru Ghosh and he was bleeding, therefore, Anima
(mother of Subhankar) took him to the nearby tubewell and was pouring water on
his face. It further came out that while she was pouring water, at that time
one Shyamal Ghosh, a neighbour, was watching the incident with a dao in his
hand. Haru snatched the dao from Shyamal and started assaulting Subhankar and
Anima with that dao, as a result of which both of them collapsed on the ground
with severe bleeding injuries. Thereafter, Haru ran away with the dao and only
after few minutes later, the informant-complainant Samir Ghosh (PW-1) came to
know that Haru had also gone to Jeevan Krishna Chakraborty's house and hacked
him and also to the house of one or two others and had injured them with the
aforesaid dao. Prosecution collected the statements of the witnesses, who were
Samir Ghosh (PW-1), Sabitri Ghosh (PW-2), Adhir (PW-8) and wife of Adhir namely
Bandana (PW-3). It came out from the statements that these persons had
intervened when Subhankar was assaulted by Haru and had rescued him. The
statement of one Atasi Ghosh (PW-5) and Shyamal Ghosh (PW-6) was also
collected. One Namita Ghosh (PW-4), a neighbour, was also questioned by the
investigating agency, as also Sikha (PW-10), who was none else, but the
daughter-in-law of Jeevan Krishna Chakraborty, who was a member of Gram
Panchayat.
3.
It transpired further that Jeevan Krishna Chakraborty though was
assaulted severally; his statement also came to be recorded. The statements of
some others present in the house of Jeevan Krishna Chakraborty were also
collected by the prosecution. Thus the prosecution collected the statements of
about 36 witnesses. On this basis, the charge sheet was filed.
4.
It also turned out during the investigation that Haru Ghosh was
already undergoing the sentence of life imprisonment in one other matter and he
had come back from the jail on bail. It further transpired that the motive for
this dastardly act on the part of the appellant/accused was that the accused
used to sell illicit liquor and all persons in the neighbourhood including the
husband of the deceased Anima used to ask him not to sell illicit liquor in the
locality. It also turned out that the appellant/accused had cut down about 75
banana trees and there was a report made, on account of which, it came out that
the appellant/accused was a bully in the locality. On this basis, the
investigating agency filed a charge sheet against the appellant/accused. The
appellant/accused abjured the guilt. His plea was that of false implication.
5.
In support of the prosecution, as many as 36 witnesses came to be
examined, the main witnesses being Samir Ghosh (PW-1), Sabitri Ghosh (PW-2),
Namita Ghosh (PW-4), Shyamal Ghosh (PW-6), Adhir Ghosh (PW-8) and his wife
Bandana Ghosh (PW-3) and Atasi Ghosh (PW- 5). On the first part of the
incident, i.e., about the assault by the appellant/accused on Anima and
Subhankar, both of whom died on the spot, and as regards the second part, i.e.,
about the assault of Jeevan Krishna Chakraborty, he himself was examined as
PW-12. The supporting witnesses to the second assault were Sikha Chakraborty
(PW-10), Jayanta Chakraborty (PW-29), Uttam Saha (PW- 30), Nilmoni Ghosh
(PW-13), Susanta Chakraborty S/o Jeevan Krishna Chakraborty (PW-27) etc.
There are
some other witnesses who were examined to corroborate these witnesses, who were
the eye witnesses. The prosecution also led the evidence of Dr. Kanchan Kumar
Sarkar (PW-34), Sakshi Ghosh (PW-7), Bahadur Ghosh (PW-9), Biswajit Ghosh
(PW-17) and Dr. Jahnunandan Misra. The evidence of police witnesses was also
led and after all the evidence, the Sessions Judge came to the conclusion that
it was proved beyond reasonable doubt by the prosecution that the
appellant/accused had committed the murder of Anima and Subhankar and also
attempted to murder Jeevan Krishna Chakraborty. The appellant/accused was
sentenced to death on account of the murder of Anima and Subhankar and was also
convicted to suffer the rigorous imprisonment for seven years and payment of
Rs. 5,000/-, and in default, to suffer six months' imprisonment on account of
offence punishable under Section 307, IPC. Strangely enough, he was also
sentenced to suffer rigorous imprisonment for 5 years and to pay Rs.5,000/- and
in default, to suffer further rigorous imprisonment for 3 months for the
offence punishable under Section 326, IPC. This was confirmed by the High
Court, necessitating the present appeal.
6.
Shri Mata Prasad Singh, the Amicus Curiae appointed by this Court
took us through the evidence of all the witnesses. All that we can say is that
there is voluminous evidence in respect of both the incidents, namely, the
murder of Anima and Subhankar and the attempt to commit murder of Jeevan
Krishna Chakraborty. The first group of witnesses Samir Ghosh (PW-1), Sabitri
Ghosh (PW-2), Adhir Ghosh (PW-8), Bandana Ghosh (PW-3), Namita Ghosh (PW-4),
Atasi Ghosh (PW- 5) and Shyamal Ghosh (PW-6) were all neighbouring witnesses.
They have all graphically described the attack on Anima and Subhankar. They
were the witnesses who actually went on the spot to save Subhankar who was
being strangulated by the appellant/accused. They have all, in one tone,
described how the appellant/accused tried to strangulate Subhankar and how
Anima got injured because of that. They have also described that thereafter,
Subhankar was bleeding and was taken near the tube-well by Anima who was trying
to wash his mouth and at that time Haru, the present appellant, snatched dao
from the hand of Shyamal Ghosh and assaulted them. Shyamal Ghosh (PW-6) has in
no uncertain terms supported the prosecution theory. It was he from whose hands
the murder weapon was snatched. Sakshi Ghosh (PW-7) was also attracted by the
hue and cry and had also seen the whole incident. Adhir Ghosh (PW-8) is husband
of Bandana Ghosh whose evidence we have already referred to. He has also seen
and graphically described the whole incident. All these witnesses have
graphically spoken about the murderous attack by the appellant/accused on
Subhankar and Anima. We have very carefully seen the cross-examination and
nothing has come from these witnesses which would render the evidence
suspicious in any manner.
7.
In that light when we see the evidence of Dr. Rathindra Nath
Haldar (PW-18), who performed the post-mortem on the body of Anima and
Subhankar, we are convinced that the appellant/accused had no other intention
but to commit murder. Anima had suffered as many as six injuries referable to
the sharp cutting weapon on the most vital parts of her body like neck. As many
as four injuries were found to be on her neck resulting in cutting of vertebra,
the fracture of mandible bone etc. The other two injuries were on her thigh and
left knee joint. In comparison, Subhankar had suffered 10 injuries on the
equally vital parts of the body like head, right eye, face, shoulders, and
right arm by way of injury No. 10. His wrist of the right hand was separated
from the hand completely. All this leaves us with no doubt that the
appellant/accused was rightly found guilty of murdering these two unfortunate,
helpless and defenceless persons apparently for no fault on their part.
8.
Shri Mata Prasad Singh could not find any fault with the evidence
to say that this appellant/accused was on inimical terms with the witnesses
and, therefore, the witnesses had falsely implicated him. The argument is
clearly unsustainable as there does not seem to be any enmity brought out on
the cross-examination of these witnesses. Therefore, even if there was enmity
between the parties then that would bring a clear cut evidence of the motive.
9.
The appellant/accused did not stop after hacking the two
unfortunate persons but proceeded in the direction of the house of Jeevan
Krishna Chakraborty (PW-12). The evidence of witnesses Sikha Chakraborty
(PW-10) and Jeevan Krishan Chakraborty (PW-12) which evidence was corroborated
by other witnesses like Prasanta (PW- 26), Nilmoni Ghosh (PW-13), Jayanta
Chakraborty (PW-29), Uttam Saha (PW-30), Biswajit Ghosh (PW-17) and Susanta
Chakraborty (PW-27) clearly brings out that this appellant/accused, immediately
after murdering Anima and Subhankar, assaulted Jeevan Krishna Chakraborty. We
have also seen the evidence of Jeevan Krishna Chakraborty along with the
medical evidence regarding the injuries and we have no doubt about the
correctness of the findings reached by the Sessions Judge and the High Court.
The assault on Jeevan Krishna Chakraborty was so severe that he lost one of his
fingers, being right hand index finger. We need not go to the other
circumstantial evidence like the blood stained clothes etc. in view of this
direct evidence of the eye witnesses and in our opinion, the Trial and the
Appellate Court have correctly come to the conclusion that the accused is
guilty for the offence punishable under Section 307, IPC. In fact, on that
count it was not necessary for the Trial Court to additionally convict him for
the offence under Section 326, IPC. That part dealing with the conviction and
sentence of the appellant/accused under Section 326, IPC would have to be set
aside and is set aside.
10.
This, however, leaves us with the question as to whether the
appellant/accused should be sent to gallows. It was tried to be argued by Shri
Tara Chand Sharma on behalf of the Government of West Bengal that this was a
rarest of rare case. Shri Sharma pointed out that this was a murder of a
defenceless lady and a young child of barely 12 years of age. It was further
pointed out that the appellant/accused had shown extreme depravity of his mind
in inflicting the dao blows on the defenceless victims and the blows were given
with such severity that both the deceased persons lost their lives on the spot.
Subhankar's part of the hand was completely separated from the rest of the
body. It was pointed out that the appellant/accused did not wait there and
immediately thereafter rushed to Jeevan Krishna Chakraborty and assaulted him
with severity.
It was
further pointed out that the appellant/accused was already undergoing
conviction and jail sentence in an earlier matter and was released on bail by
the High Court and yet he committed all these acts showing extreme depravity.
Learned counsel further urged that it will be dangerous to allow the
appellant/accused to live in the society. He was described by the learned
counsel as a bully who used to sell illicit liquor and the appellant/accused
had also admitted that he used to sell liquor. The Sessions Judge, as well as,
the High Court have accepted all these reasons and have held the case to be
rarest of rare case.
11.
However, Shri Mata Prasad Singh urged that the appellant/accused
had acted only on the spur of the moment and that merely because there were two
murders committed by him that by itself does not become a rarest of rare case.
Learned counsel for the defence further urged that the appellant/accused had
two young children and there was nobody to support his family after him and
that also is one of the considerations.
12.
The test of rarest of rare case was laid down by this Court for
the first time in the case of Bachan Singh v. State of Punjab reported in 1980
(2) SCC 684. Thereafter the same was laid down adopted the following five
considerations:- "(1) When the murder is committed in an extremely brutal,
grotesque, diabolical, revolting or dastardly manner so as to arouse intense
and extreme indignation of the community.
(2) When
the murder is committed for a motive which evinces total depravity and
meanness; e.g. murder by hired assassin for money or reward; or cold- blooded
murder for gains of a persons vis-a vis whom the murderer is in dominating
position or in a position of trust; or murder is committed in the course of
betrayal of the motherland.
(3) When
murder of a member of a Scheduled Caste or minority community etc. is committed
not for personal reasons but in circumstances which arouse social wrath; or in
cases of `bride burning' or `dowry deaths' or when murder is committed in order
to remarry for the sake of extracting dowry once again or to marry another
woman on account of infactuation.
(4) When
the crime is enormous in proportion. For instance, when multiple murders, say
of all or almost all the members of a family or a large number of persons of a
particular caste, community or locality are committed.
(5) When
the victim of murder is an innocent child, or a helpless woman or old or infirm
person or a person vis-`-vis whom the murderer is in a dominating position, or
a public figure generally loved and respected by the community."
Thereafter,
however, there are several cases in which this Court considered the question of
the rarest of rare case, each time weighing the factual situation obtained in
the matter. There can be no dispute that there cannot be a straightjacket
formula depending on the numbers of murders committed or the manner in which
the murder was committed or the fact that the appellant/accused was already
undergoing the sentence of rigorous imprisonment for life. We must hasten to
add in this case that the appeal of the appellant/accused was already pending
in the Calcutta High court against his previous conviction under Section 382, IPC.
The findings of the rarest of rare case would have to be judged in the light of
the circumstances brought about and proved by the prosecution. This Court in Om
Prakash v. State of Haryana reported in 1999 (3) SCC 19, while dealing with the
accused who had committed seven murders, observed as under:
"17.
Considering the aforesaid background of the matter, the question would be
whether the case of the appellant could be one of the "rarest of the
rare"
cases so
that death sentence is required to be imposed. In our view, even though this is
a gruesome act on the part of the appellant, yet it is a result of human mind
going astray because of constant harassment of the family members of the
appellant as narrated above. It could be termed as a case of retribution or act
for taking revenge. No doubt, it would not be a justifiable act at all, but the
accused was feeling morally justifiable on his part. Hence, it would be
difficult to term it as the "rarest of the rare" cases. Further this
is not a crime committed because of lust for wealth or women, that is to say,
murders are neither for money such as extortion, dacoity or robbery; nor even
for lust and rape; it is not an act of anti-social element kidnapping and
trafficking in minor girls or of an anti-social element dealing in dangerous
drugs which affects the entire moral fibre of the society and kills number of
persons; nor is it crime committed for power or political ambitions or part of
organized criminal activities. It is a crime committed by the accused who had a
cause to feel aggrieved for injustice meted out to his family members at the
hands of the family of the other party who according to him were strong enough
physically as well as economically and having influence with the authority
which was required to protect him and his family. The bitterness increased to a
boiling point and because of the agony suffered by him and his family members
at the hands of the other party and for not getting protection from the police
officers concerned or total inaction despite repeated written prayers goaded or
compelled the accused to take law in his own hands which culminated in gruesome
murders; may be that his mind got derailed of the track and went astray or beyond
control because of extreme mental disturbances for the constant harassment and
disputes.
Further
considering the facts and circumstances, it cannot be said that he would be
menace to the society; there is no reason to believe that he cannot be reformed
or rehabilitate and that he is likely to continue criminal acts of violence as
would constitute as continuing threat to the society. He was working in BSF as
a disciplined member of the armed forces aged about 23 at the relevant time,
having no criminal antecedents."
The
question of rarest of rare case or the justification for awarding the death
sentence was lastly considered by this Court in Santosh Kumar Satishbhushan
Bariya v. State of Maharashtra [JT 2009 7 SC 248] by Hon'ble Sinha, J. (as His
Lordship then was), and in Swamy Shraddananda @ Murly Manohar Mishra v. State
of Karnataka [AIR 2008 SC 3040] by Hon'ble Aftab Alam, J.
13.
In case of Swamy Shraddananda @ Murly Manohar Mishra v. State of
Karnataka (cited supra), which is a locus classicus, speaking for the Three
Judges' Bench of this Court, Hon'ble Aftab Alam, J. has analysed practically
the whole case law on this issue in para 29. The Court observed that in case of
Machhi Singh & Ors. v.State of Punjab (cited supra), the scope for imposing
death penalty, which was greatly restricted in the case of Bachan Singh v.
State of Punjab (cited supra), was enlarged. The test laid down in the case of
Bachan Singh v. State of Punjab (cited supra) was tested on the backdrop of the
language of Section 354(3) of the Criminal Procedure Code. It was observed in
the earlier paragraph 26 and we respectfully agree with the expression that :-
"No two cases are exactly identical. There are countless permutations and
combinations which are beyond the anticipatory capacity of the human calculus
and that the standardization of the sentencing process tends to sacrifice
justice at the altar of blind uniformity."
The Court
also observed that in case of Machhi Singh & Ors. v. State of Punjab (cited
supra), the standardization and classification of cases that the two earlier
Constitution Benches had resolutely refrained from doing, finally came to be
sealed. In Para 28, the Court observed:- "........A careful reading of the
Machhi Singh categories will make it clear that the classification was made
looking at murder mainly as an act of maladjusted individual
criminal(s)........
Then the
Court went on to consider the post Machhi Singh situation and commented that:-
"........Then the country was relatively free from organized and
professional crime. Abduction for ransom and gang rape and murders committed in
course of those offences were yet to become a menace for the society compelling
the legislature to create special slots for those offences in the penal code.
At the time of Machhi Singh, Delhi had not witnessed the infamous Sikh carnage.
There was
no attack on the country's Parliament. There were no bombs planted by
terrorists killing completely innocent people, men, women and children in
dozens with sickening frequency. There were no private armies. There were no
mafias cornering huge Government contracts purely by muscle power. There were
no reports of killings of social activists and "whistle blowers".
There were no reports of custodial deaths and rape and fake encounters by
Police or even by armed forces..........."
The Court
then observed:- "..........These developments would unquestionably find a
more pronounced reflection in any classification if one were to be made to
day.........."
The
Court, ultimately, observed that:- ".......... even though the categories
framed in Machhi Singh provide very useful guidelines, nonetheless those cannot
be taken as inflexible, absolute or immutable and that there would be scope for
flexibility......."
14.
In Para 29, the Court noted the various expressions like
"special reasons" in the context of the provisions of Section 354(3),
"exceptional reasons", "special reasons" etc. Later on, the
Court also noted some contrary views on death penalty relying on the decision
in Alok Nath Dutta judgment were also quoted. After taking resume of the case
law and after deciding that the accused in that case should not be hanged, the
Court observed in Para 66 as under:- "The matter may be looked at from a
slightly different angle. The issue of sentencing has two aspects. A sentence
may be excessive and unduly harsh or it may be highly disproportionately
inadequate. When an appellant comes to this Court carrying a death sentence
awarded by the Trial Court and confirmed by the High Court, this Court may
find, as in the present appeal, that the case just falls short of the rarest of
the rare category and may feel somewhat reluctant in endorsing the death
sentence. But at the same time, having regard to the nature of the crime, the
court may strongly feel that a sentence of life imprisonment that subject to
remission normally works out to a term of 14 years would be grossly
disproportionate and inadequate. What then the Court should do? If the Court's
option is limited only to two punishments, one a sentence of imprisonment, for
all intents and purposes, of not more than 14 years and the other death, the
Court may feel tempted and find itself nudged into endorsing the death penalty.
Such a course would indeed be disastrous. A far more just, reasonable and proper
course would be to expand the options and to take over what, as a matter of
fact, lawfully belongs to the court, i.e, the vast hiatus between 14 years'
imprisonment and death. It needs to be emphasized that the Court would take
recourse to the expanded option primarily because in the facts of the case, the
sentence of 14 years imprisonment would amount to no punishment at all."
The
Court, ultimately, in that case, awarded the sentence for life imprisonment,
but issued a further direction that convict must not be released from the
prison for the rest of his life or for the actual term as specified in the
Order, as the case may be.
Maharashtra
[JT 2009 (7) SC 248], Hon'ble Sinha, J. observed:- "When the court is
faced with a capital sentencing case, a comparative analysis of the case before
it with other purportedly similar cases would be in the fitness of the scheme
of the Constitution.
Comparison
will presuppose an identification of a pool of equivalently circumstanced
capital defendants. The gravity, nature and motive relating to crime will play
a role in this analysis."
It was
further observed:- "Next step would be to deal with the subjectivity
involved in capital cases. The imprecision of the identification of aggravating
and mitigating circumstances has to be minimized. It is to be noted that the
mandate of equality clause applies to the sentencing process rather than the
outcome. The comparative review must be undertaken not to channel the
sentencing discretion available to the courts but to bring in consistency in
identification of various relevant circumstances."
Lastly,
the Learned Judge observed:- "The weight which is accorded by the court to
particular aggravating and mitigating circumstances may vary from case to case
in the name of individualized sentencing, but at the same time reasons for
apportionment of weights shall be forthcoming. Such a comparison may point out
excessiveness as also will help repel arbitrariness objections in future."
15.
Considering the principles laid down in all these cases, let us
now take the stock of situation in the present case.
16.
There can be no dispute that this was a most dastardly murder of
two helpless persons, one a woman and another, a child. There was actually no
fault on their part. They did not invite any such dastardly action against
themselves. It is obvious that the relations between Anima's husband and the
appellant/accused were strained. Again, it cannot be denied that the
appellant/accused was given to crimes, inasmuch as, firstly he used to eke out
his livelihood by selling illicit liquor, besides he was convicted for an
offence of murder and was already facing a sentence of life imprisonment,
though his appeal was pending before the High Court. These can be said to be
the circumstances in favour of the death sentence being confirmed and indeed,
the High Court has also given the additional reasons that the murder was
committed in a most foul manner and the appellant/accused had shown extreme
depravity of his mind in inflicting grave injuries.
17.
As against this, when we start counting the circumstances against
the grant of death sentence, the first circumstance that comes to the mind is
that this was not a pre-meditated murder.
The
appellant/accused, who was on bail, did go to the house of Anima and had
assaulted the kid.
We do not
have any evidence to know under what circumstance, did the appellant/accused
enter the house of Anima and what prompted him to assault the boy. The evidence
is actually wanting on that important aspect. All the witnesses, who came on
the spot, only came hearing the din created because of the shouting in the
house of Anima, but before that, the appellant/accused had already entered the
house. After the neighbours came, all the neighbours were able to extricate Subhankar
from the hands of the appellant/accused. Undoubtedly, Subhankar had suffered
some injuries and he was bleeding and, therefore, Anima took him to the
tubewell. Till then also, the appellant/accused did not assault the twosome. In
this, we must note that the appellant/accused had not come armed with any
weapon in the house. Therefore, it cannot be said that he had any such idea of
assaulting or murdering or using any sharp cutting weapon as against the
deceased. It was probably when he saw the dao in the hands of Shyamal (PW-6),
the anger in the mind of the appellant/accused exploded and he just took the
dao from Shyamal, or to put it more correctly, wrested it from his hands and
then started assaulting the deceased. The witnesses are silent as to whether
Anima had said anything and further, whether there was any exhortation given by
anybody or whether the appellant/accused had any other reason to act at the
spur of the moment. It was as if a matchstick was applied to the wick of a
bomb, resulting in the explosion thereof. Thus, there was no pre-meditation
aspect in the act of the appellant/accused, which was at the spur of the
moment. This was obviously a reason of the long standing hatred and enmity
between the family of Anima, more particularly, her husband and others in the
neighbourhood, all who were opposed to the appellant/accused eking out his
livelihood by selling the liquor. The appellant/accused may not be justified in
eking out his livelihood by selling the liquor, but the fact of the matter is that
he and his family was surviving only on that. If that exercise was tried to be
stopped by the husband of Anima and others, the appellant/accused was bound to
nurture deep hatred in his mind, as a result of which, he acted. There is also
a history that husband of the deceased Anima had already reported against the
appellant/accused that he had cut 75 plants of Banana. One can imagine the
mental state of the appellant/accused. He had come back from the jail. He was
already under the shadow of life imprisonment. Probably, his liberty was itself
in jeopardy because of the report made against him. As a result of all this, he
acted in a sudden manner and his deep rooted hatred was exploded. We do not
think that this would be a case of pre-meditated cold blooded murder.
Much was
said by the High Court on the manner in which the murder was committed,
inasmuch as the hands of Subhankar stated to have been chopped. We have found
out in the aforementioned cases that the cruel manner in which the murder was
committed and the subsequent action on the part of the accused in severing the
parts of the body of the deceased, do not by themselves, become the guiding
factor in favour of the death sentence. Here, the accused was nurturing the
hatred even against Jeevan Krishna Chakraborty, who was obviously a leader and
had joined the hands of the neighbours and the husband of the deceased in
trying to throw out the appellant/accused. The appellant/accused, therefore,
seems to have proceeded to his house and assaulted him as an expression of his
old and well nurtured hatred against the concerned persons. Though wrongly, the
appellant/accused probably has the feeling of injustice in his being singled
out.
18.
The further fact, which we would take into consideration is that
the appellant/accused himself has two minor children, which has come in the
evidence and in the statement of the appellant/accused. Again we have already
seen as to how this Court has reacted in the case of Om Prakash v. State of
Haryana (cited supra), where the accused, under the belief that there was
injustice caused to him, had eliminated 7 persons. If we compare that case with
the present case, we would not tend in favour of the death sentence.
19.
The Learned Counsel appearing on behalf of the prosecution has
relied on number of other cases, where the death sentence awarded by the Trial
and the Appellate Court was confirmed by this Court. We have seen those cases
carefully, however, we do not think that all those cases could be comparable
with the facts in the present case. The cases relied on by Shri Tara Chandra
Sharma, Learned Counsel for the respondents are:- (3) SCC 80.
(7) SCC
455 in 2007 (4) SCC 713.
1.
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20.
We do not think that we would follow the same course as indicated
in the above cases, in view of the factual panorama of this case.
21.
That leaves us with a question as to what sentence should be
passed. Ordinarily, it would be the imprisonment for life. However, that would
be no punishment to the appellant/accused, as he is already under the shadow of
sentence of imprisonment for life, though he has been bailed out by the High
Court. Under the circumstance, in our opinion, it will be better to take the
course taken by this Court in the case of Swamy Shraddananda (cited supra),
where the Court referred to the hiatus between the death sentence on one part
and the life imprisonment, which actually might come to 14 years' imprisonment.
In that case, the Court observed that the convict must not be released from the
prison for rest of his life or for the actual term, as specified in the order,
as the case may be. We do not propose to send the appellant/accused for the
rest of his life; however, we observe that the life imprisonment in case of the
appellant/accused shall not be less than 35 years of actual jail sentence,
meaning thereby, the appellant/accused would have to remain in jail for minimum
35 years. With this observation, the appeal is disposed of, however, the death
sentence is not confirmed and instead, would be substituted by the sentence
that we have indicated.
......................................J. (V.S. Sirpurkar)
......................................J. (Deepak Verma)
New Delhi;
August 27, 2009.
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