Calcutta High Court (Appellete Side)
State Of West Bengal vs Laxmikanta Karmakar on 5 June, 2015
Author: Ashim Kumar Roy
Bench: Ashim Kumar Roy
Form No. J(1)
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Ashim Kumar Roy
And
The Hon'ble Justice Ishan Chandra Das
DEATH REFERENCE No. 1 of 2014
State of West Bengal
-vs-
Laxmikanta Karmakar
With
CRA No. 157 of 2014
Laxmikanta Karmakar
-vs-
State of West Bengal
For the Appellant : Mr. Ayan Bhattacharjee
For the State : Mr. Manjit Singh, Ld. P.P.
Mr. Pawan Kumar Gupta
Heard on: 18.3.2015, 19.3.2015 and 24.3.2015
Judgment on:- 05.06.2015
Ashim Kumar Roy, J.
In a trial held before the learned Additional District and Sessions Judge, Fast Track Court, Bankura, the accused Laxmikanta Karmakar was charged under section 302 IPC for committing murder of a new born baby by severing the head from the body and under section 201 IPC for concealing the dead body so as to cause disappearance of evidence of murder.
In the trial, the accused was found guilty on both counts and the trial court by its judgment and order convicted him for the said offences and awarded death sentence and a sentence to suffer rigorous imprisonment for 7 years and fine with default clause for his conviction under section 302 IPC and 201 IPC respectively.
2. The death reference and the criminal appeal, in hand, both are arising out of the aforesaid judgment and order.
3. The appellant/convict is a priest of a Kali temple situated at Kalakuri burning ghat, village Madhukunda, Saltora, Bankura. On January 29, 2012, at around 2 p.m., the witnesses, the local people noticed that the appellant/convict was found with a truncated head in his hand and licking blood oozing out from it and smearing the face of the idol Kali. At that time, on being asked by the witnesses, the appellant/convict disclosed he got it by beheading an illegitimate and abandoned baby. Immediately, police was informed and FIR was recorded and the appellant/convict was arrested and the investigation started.
4. In course of trial, prosecution examined total 17 witnesses to sustain its case, however, defence examined none.
It appears from the trend of cross-
examination and the answer given by the appellant/convict to the question put to him during his examination under section 313 CrPC that he was innocent and falsely implicated in the case.
5. Out of total 17 witnesses, three public witnesses PW/3 Gour Gorai, PW/5 Bhajan Mondal and PW/8 Ashis Mondal while supported the prosecution case, the public witnesses PW/1 Ram Ch. Mahali, PW/2 Nemai Gorai, PW/4 Probodh Mondal, PW/6 Ujjal Gorai, PW/11 Anilbaran Mondal and PW/13 Sashadhar Khan were declared hostile. The rest of the witnesses, PW/7 Dilip Khan, PW/9 Dilip Chakraborty and PW/10 Gurupada Praharaj, were the photographer and police constables. PW/12 Pathikrit Chatterjee was the then Officer-in-Charge of the Saltora Police Station. PW/14 Koushik Das was an Assistant Sub- Inspector of Police. PW/15 Bikash Ranjan Mondal and PW/17 Bhabendra Nath Mallick were the first and second Investigating Officer of the case. PW/16 Dr. Suparna Dutta was the Autopsy Surgeon.
6. The learned counsel appearing on behalf of the appellant/convict vehemently contended there was no eye-witness to the occurrence and the case of the prosecution entirely rest on circumstantial evidence and therefore the prosecution was not only to prove each piece of circumstance relied upon against the appellant/convict beyond all reasonable doubt but at the same time it was also incumbent upon it to show that the circumstances so proved forms a complete chain and leads to an irresistible conclusion that the petitioner and none else is the guilty of the offence with which he was charged. He further submitted even assuming but without admitting, that the prosecution has been able to prove a few circumstances but having regard to the facts, those circumstances did not form a complete chain, pointing to the guilt of the accused, since several links were missing, the conviction of the appellant/convict is completely wrong and illegal and thus liable to be set aside.
7. In support of his contention the learned counsel for the appellant/convict submitted that the following are the infirmities for which the order of conviction and sentence is liable to be set aside and the appellant/convict is entitled to an order of acquittal,
(a) The identity of the victim/child was not established.
(b) The beheaded dead body was not found in and around the place of occurrence far less in anywhere.
(c) There was no eye-witness to the occurrence and most of the independent public witnesses, whom the prosecution examined to establish the circumstances against the appellant/convict were declared hostile. Therefore, it would be quite unsafe to rely on the rest few witnesses, whose evidence was not free from doubt.
(d) Admittedly, the place of occurrence, i.e., Kali temple, is situated close to a busy public road and therefore it was impossible to escape the notice of passers-by, if at all the victim was sacrificed before the idol by the appellant/convict or after beheading, the truncated head was brought there.
(e) There was no material to show that the victim baby was last found alive in the company of the appellant/convict and therefore the theory of last seen together is not attracted and he cannot be held guilty for causing the death of the victim even if he did not come out with any explanation.
(f) The recovery of the offending weapon pursuant to the statement of the appellant/convict and on being led by him, cannot at all be relied upon since both the seizure witnesses did not support such recovery.
Lastly, it was contended even accepting the prosecution was able to establish its case, since the case does not fall under the category of rarest of rare cases, the awarding of death sentence is totally uncalled for.
On the other hand, the learned Public Prosecutor vehemently disputed the contention of the learned advocate of the appellant/convict. He submitted that the order of conviction is fully justified and no interference is at all called for. He further submitted in absence of eye-witnesses to an occurrence only on circumstantial evidence, a charge of murder can very well be established against an accused and non-availability of the eye- witness cannot be a ground of acquittal. He then added it is proved by the prosecution, the temple where the truncated head of the victim/child was found that was belonging to the appellant/convict and he was the pujari of that temple and performing daily pujas there. He further added when the truncated head was discovered and found by quite a large number of witnesses inside the Kali temple, the appellant/convict alone was present there and no explanation is forthcoming as to how such truncated head of a new born baby came there. He further submitted that after his arrest, pursuant to his statement and being led by him, the offending weapon was recovered by the police. He submitted may be that seizure witnesses who were close to the appellant/convict did not support the factum of seizure as they were gained over but that does not mean the recovery of the weapon in terms of the statement of the appellant/convict and on being led by him, is to be disbelieved. He then submitted may be that few of the co-villagers of the appellant/convict were declared hostile as they were gained over but due to that there is no justifiable reason to disbelieve the rest of the witnesses of the prosecution, whose credibility never been shattered during their exhausted cross-examination. He further submitted inability of the prosecution to fix the identity of the victim is of no consequence, when the severed head was found in the temple with fresh blood oozing out from it and the appellant/convict was found to be very much there and when it was further found by the Autopsy Surgeon, PW/16, that this was a case of ante mortem beheading and homicide. He then contended this is a very diabolic and heinous crime, where not only a new born baby was killed and sacrificed in the name of God but the appellant/convict was found licking blood from the truncated head and smearing the idol. He submitted that not only all the circumstances relied upon by the prosecution have been proved beyond all reasonable doubt but same formed a complete chain which clearly pointed out the guilt of the appellant/convict.
In answer to the contention of the learned advocate of the appellant/convict that no truncated body was recovered. He contended that the appellant/convict was for the second time taken into police custody and all efforts were made by the Investigating Agency to recover the body but due to non-recovery of the same does not make the case of the prosecution disproved.
8. Coming to the question of sentence, the learned Public Prosecutor submitted the appellant/convict deserved no sympathy. He contended on the face of the extreme brutality, diabolism and the gruesome and heinous manner in which the crime was committed, this is a fit case where the sentence of death be upheld.
9. Admittedly, this is a case based entirely on circumstantial evidence. It goes without saying according to the well-established principle of law, in a case of this nature each and every circumstance relying upon by the prosecution against an accused is to be proved beyond all reasonable doubts and then each piece of circumstance so proved, must together forms a complete chain and lead to one and only one inevitable and irresistible conclusion that it is none else than the accused is the author of the crime.
10. On perusal of the evidence on record, we find the prosecution has relied on the following circumstances to prove the guilt of the appellant/convict,
(a) The appellant/convict was the priest of the Kali temple founded by him and he was regularly doing daily worship and pujapath of the idol.
(b) A truncated head of a new born baby was found inside that temple and when the accused was present there.
(c) According to PW/5 Bhajan Mondal, he found the appellant/convict holding a truncated head of a new born baby in his hand and was licking fresh blood oozing out from the severed head and rubbing blood on his cheek and chin and according to PW/8, Ashis Mondal when he came to the spot, he found the appellant/convict was trying to hang the severed head of the baby on the neck of the idol Kali and was licking fresh blood which was oozing out from it.
(d) The other witnesses, arrived latter, found the said truncated head at the feet of idol Kali.
(e) Extra judicial confession of the appellant/convict.
In which he disclosed to the PW/5 Bhajan Mondal that the baby was an abandoned and illegitimate one and he had procured the head of the said baby having severed it from the body.
Similarly, he disclosed to the PW/8 Ashis Mondal and others that he himself severed the head and in order to make the people believe, he was licking fresh blood which was oozing out from the severed head.
(f) The police seized blood stained earth from the idol of lord Siba, lying at the feet of Goddess Kali and one trisul smeared with vermilion and one broken earthen horse, suspected to be smeared with blood from the temple of the appellant/convict, where the truncated head was found.
(g) According to the FSL report, those seized articles contained human blood.
(h) Pursuant to the statement of the appellant/convict and being led by him, one iron made vojali, 10 inches in length, appears to be stained with human blood was recovered from a bush near to the temple (place of occurrence) and was seized by the police and the appellant/convict scribed his signature thereon.
(i) According to the FSL report, the seized offending weapon was stained with human blood and when the same was shown to the Autopsy Surgeon, PW/16, she opined that the sharp cutting injuries at the base of the scalp may be caused by that weapon or by similar weapon.
(j) The PW/16 is the Doctor, held the post mortem over the severed head and according to her opinion, the same was severed from a living baby and the cause and manner of death was due to the effect of injury as noted in the post mortem report and were ante mortem and homicidal in nature.
11. The most vital local witnesses on whose evidence the prosecution case originated and essentially rest were PW/3 Gour Gorai, PW/5 Bhajan Mondal and PW/8 Ashis Mondal.
We, however, unable to take into consideration the evidence of PW/8, Ashis Mondal, a very vital witness of the prosecution due to a serious lapse and gross illegality committed by the learned trial Judge, who during examination of the appellant/convict under section 313 CrPC did not refer the evidence of the said witness to the appellant/convict and seek his explanation. Accordingly, the evidence of this vital witness of the prosecution Ashis Mondal (PW/8) is kept out of our zone of consideration.
Now, coming to the evidence of the PW/3 Gour Gorai, we find, while he was engaged in his work at a field situated by the side of the burning ghat of Kalakuri village, at around 2 p.m., hearing an uproar rushed to the spot and found a severed head of a new born baby hanging inside the temple of the appellant/convict and the appellant/convict, who was present there, gave no satisfactory explanation as to how the said truncated head of a newly born baby came there. The defence only suggested he was telling lie but the witness denied the same.
The PW/5 Bhajan Mondal is a co-villager of the appellant/convict. He disclosed in his evidence that there was a temple of Goddess Kali at the burning ghat of village Kalakuri belonging to the appellant/convict and he used to worship the deity and maintained the said temple. He further disclosed, on that day while he was returning home from his garden after about 1 p.m., he found the appellant/convict holding the severed head of a new born baby in his hand, licking fresh blood oozing out from the said truncated head and rubbing blood on his cheek and chin.
Now, on a careful scrutiny of the evidence of the PW/3 Gour Gorai and PW/5 Bhajan Mondal, we find both the witnesses during their cross- examination withstand the challenges they faced from the defence. In their lengthy cross-examination the defence could not able to elicit anything that may discredit them.
Accordingly, on the evidence of PW/3 and PW/5, we have no doubt that the prosecution has able to establish the circumstances that the appellant/convict had a temple at the burning ghat of village Kalakuri and was the priest there and on the fateful day in the temple a truncated head of a newly born baby was found and the appellant/convict was licking blood oozing out from the said severed head and was rubbing fresh blood on his chin and cheek.
12. Now coming to the evidence of the other local witnesses, viz., PW/1 Ram Ch. Mahali, PW/2 Nemai Gorai, PW/4 Probodh Mondal and PW/6 Ujjal Ghosh, we find they were declared hostile by the prosecution.
It is well-settled, declaration of its own witnesses hostile by the party called him, does not ipso facto exclude or render their entire evidence unworthy of consideration. The evidence remained admissible in the trial and there is no legal bar to base the conviction upon the testimony of such witnesses. In appropriate cases court can rely on that part of the testimony of the hostile witness, if it is found that there is no contradiction with regard to that part of the deposition and the same is corroborated by other witnesses. However, the court in order to act on the evidence of an hostile witness must be extremely cautious and circumspect and is to find out whether as a result of declaring such witness hostile and due to his cross-examination by the prosecution, the witness stands completely discredited or can still be believed in regard to any part of his testimony. In this regard reliance can be placed in the case of Gura Singh vs. State of Rajasthan reported in 2001 SCC (Cri) 323; Anil Roy vs. State of Behar reported in 2001 SCC (Cri) 109; Balu Somba Shinde vs State of Maharashtra reported in (2002) 7 SCC 543; State of U.P. vs. Ramesh Prasad Mishra reported in 1996 SCC (Cri) 1278.
Now, applying the principle of law on the question how far the evidence of a hostile witness aptly be relied upon, we find PW/1, Ram Ch. Mahali, while testified in court stated there was a Kali temple at the burning ghat of village Kalakuri and the appellant/convict was the priest of the said temple and looks after the day-to-day worship of the Goddess Kali. The witness further deposed that on the fateful day at around 1/1.30 p.m., a truncated head was found in the temple near the feet of the accused/appellant.
According to the PW/2, Nemai Gorai, Laxmikanta used to perform daily puja of Goddess Kali at the temple situated at Kalakuri burning ghat.
The PW/4 Probodh Mondal deposed to the effect that at the relevant time when he went to the temple of Goddess Kali of the appellant/convict, he found a severed head of a baby smeared with fresh blood was lying inside the temple and Laxmikanta was also present there.
The PW/6 Ujjal Gorai is the only other witness, who stated in his evidence he saw a severed head of a baby in the hand of appellant/convict inside his temple and he saw blood was oozing out from the said truncated head and the mouth of the appellant/convict was smeared with blood and on being asked, he disclosed that the said severed head belonged to an abandoned and illegitimate baby of someone.
Now, on a careful scrutiny of the deposition of the PW/1, PW/2, PW/4 and PW/6, we find their evidence that at the burning ghat of village Kalakuri there is a Kali temple belonging to the appellant/convict and he used to worship the idol daily and on the fateful day a truncated head of a newly born baby with fresh blood oozing out therefrom, was found inside the temple and at that time the appellant/convict was there with his face smeared with fresh blood, was never stand contradicted with the prosecution case and on the other hand their such evidence amply corroborated by the evidence of other witnesses, viz., PW/3 and PW/5.
Therefore, this part of the evidence of the hostile witnesses PW/1, PW/2, PW/4 and PW/6 referred herein above, being not in contradiction with the prosecution case and amply corroborated by the evidence of PW/3 and PW/5, can now very well be relied upon against the appellant/convict to fortify the prosecution case.
13. The extra judicial confession of the appellant/convict made to PW/5, Bhajan Mondal is another very vital circumstance pitted against him from the side of the prosecution. After the discovery of the truncated head of a new born baby, the appellant/convict when was asked by the said witness, wherefrom he got that truncated head of a new born baby, the appellant/convict disclosed to him that the baby was an abandoned and illegitimate one and he procured the truncated head of the said baby having severed it from the body.
Claim of the PW/5 as regards to the extra judicial confession of the appellant/convict, as above, was never challenged by the defence during his cross-examination. Even the PW/5 was not remotely suggested that his evidence on the question of extra judicial confession was false or that same was not a voluntary one. The accused/convict when was questioned on the score of making extra judicial confession to the PW/5 Bhajan Mondal during his examination under section 313 CrPC never denied to make such confession but claimed to be innocent. The defence has not able to bring on record any materials to show that the PW/5 bore any animus against the appellant/convict and telling lie.
There is neither any rule of law or of prudence that evidence furnished by extra judicial confession cannot be relied upon unless corroborated by some other credible evidence.
If the evidence about extra judicial confession comes from the mouth of the witness who appears to be un-biased not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive for attributing an untruthful statement to the accused; the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it, then after subjecting the evidence of the witness to a rigorous test, on the touchstone of credibility, if it passes the test, the extra judicial confession can be accepted and can be the basis of a conviction. In this regard the decision of the apex court in the case of State of U.P. vs. M.K. Antony reported in 1985 SCC (Cri) 105; Kishore Chand vs State of Himachal Pradesh reported in 1991 SCC (Cri) 172, can be well referred.
Having regard to above, the circumstance of extra judicial confession by the appellant/convict stands established and is accepted.
14. The next circumstances against the appellant/convict is the seizure of blood stained earth from the idol Siba and one broken earthen horse smeared with blood from inside the temple which on examination by the FSL, was found to have contained human blood. When a question as regards to the same was put to the appellant/convict during his examination under section 313 CrPC, he never denied the factum of seizure and claimed that he has no knowledge about the same.
We find the factum of seizure of blood stained earth and same contained human blood stands proved.
15. The next circumstance relied upon by the prosecution against the appellant/convict is the recovery of the offending weapon, a bhojali from a bush located within the Kalakuri burning ghat, pursuant to his statement made to the police and on being led by him.
We find that according to the FSL report the said bhojali was smeared with human blood and when the said bhojali was shown to the PW/16 Autopsy Surgeon, she stated that by that bhojali, the sharp cutting injuries found at the base of the scalp may be caused.
16. The statement of the appellant/convict leading to the discovery and the recovery memo, both were exhibited during the trial and were marked as Ext.-14 and Ext.-7 respectively. The recovery memo contains the LTI of the appellant/convict and the signatures of two seizure witnesses PW/11 Anirban Mondal and PW/13 Sashadhar Khan. Neither the appellant/convict nor those two seizure witnesses PW/11 and PW/13 disputed his LTI and the signatures on the recovery memo.
However, during his examination under section 313 CrPC, with reference to the recovery memo, the appellant/convict complained that he was assaulted by the police and then was compelled to put his LTI on the seizure list. We find seizure was made on February 2, 2012 and from police remand on February 4, 2012 the appellant convict was produced in court with the seizure list. We further find from the order sheet that the learned Magistrate also took note of seizure of offending weapon and made necessary endorsement of the seizure list. On perusal of the order sheet on that day we find the learned Magistrate recorded that appellant/convict was found to be physically fit and he made no complaint about any ill-treatment meted out to him during the police remand. On that day on behalf of the appellant/convict, a prayer for bail was made, now on perusal of the said bail application which is lying with the records, we do not find there was any iota of allegation that during police remand the appellant/convict was physically tortured and was compelled to sign on the recovery memo. The appellant/convict for the first time made those allegations nearly 11 months after the seizure, and during his examination under section 313 CrPC, there is no explanation forthcoming why there is such an inordinate delay in making such allegation against the police by the appellant/convict. It is beyond our understanding what prevented the appellant/convict to make such complain, if not on the very first day of his physical production in the court, after seizure, but on the next few occasions, when he was again produced in court. We are, therefore, not inclined to give any importance to the claim of the appellant/convict and are of the firm opinion that his plea is an afterthought and on due deliberation.
There is another notable feature as regards to the question of recovery of the bhojali, the offending weapon. Both the seizure witnesses, viz., PW/11 Anirban Mondal and PW/13 Sashadhar Khan disputed the factum of seizure in their presence but not their signatures on the recovery memo/seizure list. They claimed on being asked by the police they put their signatures on a blank paper. However, when we go through the seizure list/recovery memo, we find the factum of seizure was not noted on a plain paper but in a printed form.
Therefore, the question of suspecting the factum of seizure on the plea of the appellant/convict and of those two seizure witnesses PW/11 and PW/13, declared hostile does not at all arise and the circumstances of recovery of the offending weapon pursuant to the statement of the appellant/convict and on being led by him, stands established.
Before parting with, it would be most apposite to refer two decisions of the Hon'ble Supreme Court as regards to the question of recovery under section 27 of the Evidence Act, in the case of Himachal Pradesh Administration vs. Om Prakash reported in AIR 1972 SC 975. In paragraph 9 thereof, the Apex Court amongst other observed as follows, ............... In our view the evidence relating to recoveries is not similar to that contemplated under Sec. 103 of the Criminal Procedure Code where searches are required to be made in the presence of two or more inhabitants of the locality in which the place to be searched is situate. In an investigation under section 157 the recoveries could be proved even by the solitary evidence of the Investigating Officer if his evidence could otherwise be believed. We cannot as a matter of law or practice lay down that where recoveries have to be effected from different places on the information furnished by the accused different sets of persons should be called in to witness them.
(paragraph 9).
17. The PW/16, Dr. Suparna Dutta held post mortem on the severed head found in the temple of the appellant/convict. According to the said witness, the death was due to the effect of injuries as referred by her in the post mortem report and homicidal in nature.
The defence cross-examined the PW/16 Autopsy Surgeon at length and not only failed to discredit her but brought out very incriminating materials against the appellant/convict and the same are as follows,
(a) The lustrous growth of hair, absence of membrana pupillaries, presence of lanugo hairs all go in favour of the severed head being of a neonate, i.e., within 28 days of birth.
(b) The liquid blood still oozing from the injuries without any clot formation, goes more in favour of fresh injuries, i.e., within 24 hours.
(c) The incised injuries at the base of the head is caused by a sharp cutting weapon and shows blunt force injury over the vault of the skull. Which is evident by the presence of Heamatoma over the skull and bleeding at the base of the skull also with no proper delineation of anterior and posterior fontanelle's.
(d) The blunt force injuries are caused either by thrusting the head forcefully against some blunt surface with holding the body or directly hitting the head by a blunt weapon.
(e) The oozing of the blood from the incised injuries at the base of the head determines that the deceased was still alive following blunt force injury and the incised injuries were inflicted after the blunt force injuries being made and the deceased was alive during infliction of the incised injuries.
18. On the findings as above, all the incriminating circumstances relied upon by the prosecution against the appellant/convict, undoubtedly stands established. The chain is complete and taking into consideration all the proved facts collectively, the same leads to irresistible and inevitable conclusion that it is none else but the petitioner is the author of the crime and he concealed the beheaded dead body of the baby to conceal the disappearance the offence of murder.
19. After the most incriminating circumstance against the appellant that a truncated head of a new born baby was found inside his temple and when he was alone there being proved beyond all reasonable doubt, the provisions of section 106 of the Evidence Act comes into play and the burden shift on him to explain how that severed head came there, as the same was within his special knowledge. However, the appellant/convict having failed to offer any explanation as regards to the same and only claimed his innocence, such failure can very well be considered as an additional link in the chain of circumstance pointing his guilt. We are therefore of the opinion, the conviction of the appellant for the offences punishable under section 302/201 of the Indian Penal Code is completely justified and same deserves no interference. The order of conviction and sentence passed against the appellant/convict by the trial court stands upheld.
20. That leaves us with a very crucial question as to whether the sentence of death awarded to the convict be confirmed or reduced to imprisonment for life or for the actual terms as may be specified, in the light of the decisions of the Hon'ble Supreme Court, in the case of Swamy Shraddananda vs. State of Karnataka reported in (2009) 3 SCC (Cri) 113; Sebastian vs. State of Kerala reported in (2010) 1 SCC 58; Dilip Premnarayan Tiwari vs. State of Maharashtra reported in (2010) 1 SCC 775; Gurvail Singh @ Gala and another vs. State of Punjab reported in (2013) 2 SCC 713.
21. Before a Constitutional Bench of the Apex Court in the case of Bachan Singh and Ors. vs. State of Punjab reported in (1979) 4 SCC 754: the constitutional validity of imposition of Extreme Penalty, death sentence, fell for consideration. By a majority view the challenge against the constitutional validity was rejected. The Apex Court, however, observed great weightage must be given to certain relevant circumstances in the determination of sentence and delineated broad illustrative guidelines describing as aggravating and mitigating circumstances.
Out of 7 conditions set out as the mitigating factors, the conditions no. 3 and 4 may be well referred in this regard.
Condition no. 3: The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society.
Condition no. 4: The probability that the accused can be reformed and rehabilitated.
The State shall by evidence prove that the accused does not satisfy the Conditions 3 and 4 above.
However, in this case, State has not come out with any contrary evidence that the appellant/convict does not satisfy those conditions. According to the Constitutional Bench of the Hon'ble Apex Court, to obtain an order of death sentence against any convict, it is for the State to lead evidence that if the appellant/convict is allowed to survive, that would constitute a threat to the society. No evidence is produced from the side of the State to show that he is incapable of reform. On the other hand, the learned Public Prosecutor submitted before the trial court the case does not come within the purview of rarest of rare cases.
22. The trial court quite elaborately discussed the reasons that prompted it to impose death sentence against the accused, which are as follows;
(a) An unknown new born baby was killed in an extremely brutal, diabolical and dastardly manner by the convict.
(b) The nature of injuries as was found during post mortem on the truncated head shows that the convict was acting like a demon with a determination to finish an unknown newly born baby who was completely innocent.
(c) The offence committed was pre-
meditated one and is a result of afterthought.
(d) The convict to enjoy demonic pleasure even in presence of members of public was licking blood of the baby and smeared the same on his face.
Lastly, the trial Judge was of the opinion, it would be extremely dangerous for the society if the convict is allowed to live further as there is every possibility he may again repeat this type of horrifying and demonic act against a baby, if again gets any opportunity, he shall repeat the same offence to fulfil his unnatural demonic nature.
23. While discussed in detail, the aggravating circumstances against the appellant, the trial court made no endeavour to examine the question of sentence in the light of mitigating and extenuating circumstances. One of the reasons for which the trial court awarded death sentence is this, it would be extremely dangerous for the society to permit the convict to remain alive any further, as there is every possibility that he may again repeat this kind of horrifying, demonic act in respect of any baby, if he gets such chance. However, there is no indication in the judgment that trial court ever addressed it on the question as to how such possibilities can be obviated, which is a grave mistake on its part. When in a criminal trial, an accused is found to be guilty of having committed an offence for which one of the sentences is extreme penalty i.e., the sentence of death and from the evidence on record it is found the crime committed is horrifying, diabolic, brutal, inhuman, barbaric and heinous, still without considering the case in the light of both aggravating and mitigating circumstances, the court cannot impose extreme penalty, merely taking into account aggravating circumstances and overlooking the mitigating factors. We therefore, propose to examine the question of sentence also in the light of mitigating circumstances, which has not been done by the trial court, to do the real and substantial justice.
24. The trial court awarded the extreme penalty to shield every possibilities of similar offence being repeated by the convict in future and thereby to protect the larger interest of the society. Undoubtedly, the offence committed is inhuman, heinous, brutal and barbaric. We, however, of the opinion the likelihood of commission of similar offence by the convict can be well averted and the larger interest of the society can also be safeguarded, even without awarding extreme penalty of death, if in the light of the decision of the Apex Court referred herein above, the convict is sentenced to imprisonment for life fixing a minimum period of imprisonment without remission. We must record, by balancing the aggravating and mitigating circumstances emerging from the evidence on record, we are not persuaded to accept the case is to be one, which deserves death penalty. In our opinion, it would sub-serve the ends of justice and be adequate, if the sentence of death is commuted to imprisonment for life, with a minimum sentence of 35 years, without remission.
25. Accordingly, while upholding the order of conviction, we commute the sentence of death imposed against the convict to imprisonment for life and he shall not be released until he completes 35 years of actual imprisonment without reemission.
In the result, the death reference is rejected and the appeal stands partly allowed in the manner as aforesaid.
Office is directed to send down the LCR together with the copy of the judgment to the court below at once.
A free copy also be made over to the convict through the Superintendent of the Correctional Home, where he is now under detention.
Urgent xerox certified copy of this order be given to parties, if applied for, as early as possible.
(Ashim Kumar Roy, J.) I agree.
(Ishan Chandra Das, J.)