Allahabad High Court
Rajesh Manjhi vs State Of U.P. on 20 July, 2018
Equivalent citations: AIRONLINE 2018 ALL 2757
Bench: Amreshwar Pratap Sahi, Bachchoo Lal
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 40 REFERENCE NO. 13 OF 2017. Case :- CAPITAL CASES No. - 5917 of 2017 Appellant :- Rajesh Manjhi Respondent :- State Of U.P. Counsel for Appellant :- From Jail,Birendra Prasad Maurya Counsel for Respondent :- A.G.A. Hon'ble Amreshwar Pratap Sahi,J.
Hon'ble Bachchoo Lal,J.
Heard Sri Chetan Chatterjee, learned counsel appearing as amicus curiae on behalf of the appellant who has rendered his valuable assistance to the Court for almost one and a half days in the hearing of this capital appeal. We put on record our appreciation for his efforts as a friend of the Court.
The incident giving rise to this appeal is of the murder of two children aged about seven and five years respectively, the appellant being the sole culprit prosecuted by the State upon the lodging of an FIR in relation to an incident dated 29th August, 2013 at about 8:00 am in the locality of Sarsaiyaghat under Police Station Kotwali, Kanpur Nagar. The FIR has been lodged by the father of the two children promptly at about 9:30 am on the same day narrating that a son of the accused had died on 28th August 2013, that is a day earlier to the incident, and the cause of the death of that child was believed by the accused to be on account of some sort of magical curse having being cast by the complainant which worked fatally on the child causing his death. It is on account of such a revengeful state of mind that on the fateful day, the appellant caught hold of his two sons, namely, Sahil aged about seven years and Kartik aged about five years and slit their throats with a kitchen knife when they were playing outside along with other children. It is also stated therein that he chased his third son, namely, Golu aged about ten years and attempted to kill him who ran away from his clutches. The complainant further narrates that on raising a hue and cry and after having seen his third son run away, he cried for help, as a result whereof, members of the locality also arrived on the scene. The accused-appellant was apprehended by the complainant with the help of some people on the spot along with the weapon of murder, but the way he had behaved at the time of being apprehended had created terror, as a result of which, many people ran away and shut themselves behind doors. There was an atmosphere of fear amongst everyone including some pilgrims and this incident was witnessed by Sunil Saini, Ram Milan Thakur and Mantu son of Mahendra. At that very moment, the local police arrived and with the help of the members of the locality, the appellant was taken into custody. The body of the two children were carried to Ursula Hospital where the attending doctor declared them dead. The complainant thereafter turned back for the police station where he came along with the accused and the weapon and handed him over to the police. He also got a written report prepared by Basant Lal, whereupon the First Information Report was registered and transcribed by PW-5 Moti Lal Verma (Sharma), the head constable at the police station. The arrest memo as well as the recovery of the weapon was also recorded in the recovery memo which was exhibited as Exhibit Ka-15 and which narrates about the description of the weapon being about seven hand-fingers in length with a metal blade of the same length smeared with blood. The same was taken into custody from the accused. We may mention here that later on according to the statements on record particularly of the Investigating Officer the weapon is stated to have been handed over by the complainant.
The recovery of blood stained earth and plain earth has also been recorded in the recovery memo exhibited as Exhibit Ka-17. The recovery of clothes has been recorded in the recovery memo exhibited as Exhibit Ka-18.
The post mortem was carried out at Hallet Hospital. The report of the post mortem in respect of both the deceased is identical except for the length of the throat cut which is an incised wound of 10 cm x 3 cm in the case of deceased Sahil and 8 cm x 3 cm in the case of deceased Kartik. The wounds are incised on the front of the neck cutting through and through the larynx, trachea and oesophagus, 4 cms below the chin. The cause of death has been indicated as shock and haemorrhage due to the ante-mortem injuries caused by a sharp object. Both the post mortem reports have been proved by Dr Gyanendra Kumar PW-4. The incriminating articles including the clothes were sent for a serological report to the forensic laboratory and the report has been tendered as Exhibit Ka-14 describing that the knife along with the other nine items indicated presence of blood. However the pant, the t-shirt and the shirt that was sent for report further indicated human blood. Disintegrated blood was shown on Item Nos. 1, 2, 3, 9 and 10. The presence of blood on Item Nos. 4, 7 and 8 could not be classified as per the said report.
The investigation proceeded, and ultimately, the appellant was charged with the offence of having committed the murder of the two children under Section 302 IPC, whereupon the father of the deceased Tinku Pal was examined as the first prosecution witness as PW-1. The second prosecution witness is Golu who deposed before the Court as PW-2 and is the third child of PW-1 stated to have succeeded in running away from the clutches of the appellant and witnessed the entire episode. Mantu PW-3 is a neighbour and a resident of the same locality who is said to have arrived at the scene of occurrence and witnessed the commission of the offence by the appellant.
These are the three witnesses of fact of the entire episode whereafter Dr Gyanendra Kumar who had conducted the autopsy was examined as PW-4, the scribe of the FIR, Head Constable, Moti Lal Verma (Sharma) was examined as PW-5. Dr Vijay Kumar Singh was examined as PW-6 who had received the dead bodies and had directed them to be deposited in the mortuary. Thereafter, Ajay Raj Verma and Ram Singh Yadav were examined as PW-7 and PW-8 respectively. PW-7 is the Investigating Officer and PW-8 is the Sub-Inspector of Police who prepared the memos including the inquest report and proved it before the Court.
The appellant Rajesh Manjhi tendered his statement under Section 313 Cr.P.C. and then produced himself as a witness DW-1 on behalf of the defence Mahesh Manjhi was examined as DW-2 and Smt. Ranju Devi, the wife of the appellant was examined as DW-3. The trial court vide judgment impugned herein dated 15.09.2017 found the case against the appellant to have been proved to the hilt and while proceeding to award sentence, the trial court further held that keeping in view the nature of the crime and the other factors on record this was an example of rarest of the rare cases. Therefore the ultimate penalty of capital punishment deserves to be awarded in the present case. Aggrieved the appellant is before this Court.
Sri Chetan Chatterjee while advancing his submissions took us through the records including the statement of the witnesses and urged that the manner in which the FIR is said to have been reported promptly does not appear to be correct, inasmuch as, the incident is of 8:00 am and the FIR was lodged at 9:30 am after the complainant had visited the two hospitals which must have consumed ample time, and consequently, the timing of the FIR does not appear to be correct. To substantiate his argument, he has invited the attention of the Court to the cuttings on the timing of the FIR on the post mortem report. He then submits that the FIR categorically describes that the offence is alleged to have been committed by the appellant on account of the enmity as projected, namely, the revengeful attitude of the accused on account of his alleged belief that the complainant had practiced some sort of black art to curse his ten year old son who had died just a day before the incident. He submitted that this narration which has been made in the FIR was sought to be substantiated through the evidence of the prosecution, namely, the statement of PW-1 and PW-3, but the same having been rebutted through the defence witnesses, this allegation remained a doubt on suspicion without any proof so as to advance the story of the prosecution in order to establish the guilt of the appellant.
He then contends that the appellant has set up a defence of carrying one of the children in his arms to his rickshaw for taking him to the Hospital, and as a matter of fact, it was someone else who had committed the said offence. This aspect according to him has been overlooked by the trial court inspite of the fact that the defence has led evidence in this regard. He, therefore, submits that there was ample material to doubt the genesis of the commission of the offence but the trial court has erroneously proceeded to convict the appellant.
Sri Chatterjee has then invited the attention of the Court to the manner in which the possession of the weapon from the appellant has been described. He submits that as a matter of fact the appellant was not in possession of any such weapon and according to the statement of the Investigating Officer, the weapon had been handed over by the complainant, and therefore, it was for the prosecution to explain as to how the weapon had been taken into custody from the hands of the complainant when the allegation was against the appellant. This, therefore, casts a serious doubt on the prosecution story that the appellant had been apprehended after having been seen assaulting the two deceased boys with a knife. Had the appellant been really apprehended on the spot while committing the offence when there was no occasion for the prosecution to have led evidence to the effect that the weapon had been received from the complainant and not the appellant.
He has then submitted that the scoring out of the timings in the FIR, and the presence of rigor mortis in the post mortem report leaves no room for doubt that there is a wide gap between the timing of the incident, the lodging of an FIR and the findings in the post mortem report. This, therefore, creates a substantial doubt about the correctness of the contents of the post mortem report to that extent. Inviting the attention of the Court to the serological report received from the forensic science laboratory, he submits that the report nowhere establishes the presence of human blood on the knife alleged to have been recovered which is the weapon of assault. In this background, none of the aforesaid materials collected during investigation inspire confidence in order to corroborate the ocular testimony on the basis whereof the guilt is stated to have been found proved.
Raising his submissions about the veracity and correctness of the oral testimony, he submits that PW-1 in his statement has admitted that he arrived at the scene only after the actual murder had taken place. PW-1, therefore, is not an eye witness of the actual commission of the offence and his narration is therefore based on mere hearsay and from whatever information he alleges to have gathered later on. The testimony of PW-1, is therefore, unreliable so as to implicate and involve the appellant in the commission of the offence. The contention is that in his testimony he has altered his statement to the effect that he came out of his hut after having heard the scream of his son, whereas in the FIR he has narrated that he came out of his hut and then heard the scream of his son. This discrepancy, therefore, further adds to the doubt of the prosecution case and the presence of the witness at the scene of occurrence. It is further submitted that PW-1 has indicated the presence of a Shiv temple whereas the site plan mentions a Ram Janki temple on one side of the road and Maa Santoshi Maa temple on the other side where the incident is alleged to have taken place. There is therefore no Shiv temple and to this extent also the testimony of PW-1 is uncreditworthy. The description of the other children playing along with the deceased has also not been substantiated and further the arrival of PW-3 Mantu at the scene of occurrence is also an afterthought, inasmuch as, PW-3 in his statement has narrated having seen the entire occurrence along with PW-1, whereas PW-1 arrived after the murders had taken place. In such circumstances, there is an inconsistency which remains unexplained, and consequently, this part of the testimony of PW-1 also should be discarded. The trial court has, therefore, erroneously relied on the statement of PW-1 so as to corroborate the statement of the other witnesses.
Before criticizing the statement of PW-2, Sri Chetan Chatterjee has proceeded to impeach the statement of PW-3 Mantu contending that he is an interested witness on account of he being a resident of the same place as the wife of the complainant. He further submits that in the background of some dispute about which a narration has been made, the testimony of PW-3 is partisan in nature and he has been introduced with the sole objective of a false testimony in order to get the appellant punished. PW-3 in his statement has supported the prosecution story by narrating the offence having been committed by the appellant one after the other and then also states that he had actually seen the appellant slitting the throats of both the deceased children. He has also described himself to be a bit physically handicapped. Sri Chatterjee submits that the distance of his hut and the place from where he said to have witnessed the crime is considerable and it was not possible for him being a physically handicapped man to have rushed on the spot and having seen the actual commission of the offence. The submission, therefore, is that the testimony of PW-3 also cannot be believed in view of the aforesaid discussions.
He then contends that PW-2 being the son of PW-1 clearly appears to have been tutored to give a parroted statement. He submits that the clarity with which he has described the commission of the offence is belied by the fact that when he was confronted with such questions which ordinarily ought to have been answered by him, the answer given by him was in the negative. To illustrate this Sri Chatterjee submits that upon being asked as to in what school did he study, PW-2 could not give any plausible answer, and similarly, he could not recite the name of those children who are stated to have been accompanying him and the deceased children while playing when the incident took place. He, therefore, submits that such important facts were clearly omitted when the Court itself had found the said witness to be capable of giving testimony. He contends that such omissions in his statement demonstrate that he has narrated only that part of the story that was set up by the prosecution and when confronted with other questions, he completely faltered. Consequently, no reliance can be placed on his statement as he has also attempted embellishment. Sri Chatterjee points out that during his testimony, he stated that the knife which was being wielded by the appellant had also injured the finger of deceased child Kartik. This statement does not get corroborated by the post mortem report which clearly indicates no sign of any such injury. It is further substantiated by the deposition of the doctor himself who conducted the autopsy. Consequently, the appellant appears to have been falsely implicated and the said witness does not appear to have seen the actual commission of the offence at all.
Learned counsel has then urged that the testimony of the other formal witnesses do not match with the description of the incident by the prosecution for which he says that the evidence and statement of the doctor PW-4 is also not creditworthy, inasmuch as, he has admitted the scoring out of the date of FIR on the post mortem report and further he has been unable to give any explanation about the omissions in his statement in order to prove the post mortem report.
Moti Lal Sharma who is the scribe of the FIR has been unable to corroborate any facts relating to the incident and Dr Vijay Kumar Singh who has been examined as PW-6 has not fully discharged his burden in supporting the prosecution case. Similarly, the Investigating Officer as well as the officer who prepared the recovery memo and inquest report as well as the Inspector who prepared the inquest report have not been able to substantiate the episode with any cogent evidence. He, therefore, contends that this is a clear case where the appellant ought to have been acquitted, inasmuch as, he had led evidence in defence to establish that he was innocent. For this reliance has been placed on the statement of DW-1, DW-2 and DW-3 to urge that their testimony clearly exonerates the appellant and the prosecution story therefore becomes highly doubtful. He has therefore prayed that in view of the aforesaid background the appeal be allowed and the impugned judgment be set aside setting the appellant at liberty.
Countering the said submissions learned A.G.A. Sri Ajit Ray has urged that the oral testimony of PW-1, PW-2 and PW-3 coupled with the medico legal evidence proves the case of the prosecution as set-out in the first information report. The defence set-up by the appellant is not based on any cogent evidence and is an attempt to divert the course of the case inasmuch as the appellant having failed to dislodge the burden that has been shifted on him, has tried to take-up a defence which in sum and substance demolishes his own stand taken before the trial court. It is urged that this is a case of spot arrest, in a day light murder of two innocent children and there is absolutely no reason to doubt the oral testimony of the prosecution witnesses who have clearly witnessed the entire episode and have made categorical averments before the trial court to substantiate it. He submits that from the very initial step of lodging of the first information report, which was prompt, upto the stage of completion of the investigation it is evident that it was the appellant alone who committed the offence and was therefore rightly awarded a death penalty. He submits that in the background in which the ultimate penalty of death was pronounced against the appellant there can be no doubt that the offence was heinous in nature and therefore gravity of the offence as well as all mitigating and aggravating factors taken together do not call for any such reduction in sentence so as to extend any benefit to the appellant. He therefore submits that the judgment of the trial court deserves to be affirmed and the appeal deserves to be dismissed.
Sri Chetan Chatterjee while advancing his submissions on the issue of the gravity of the offence and the proportionately of sentence has cited several decisions. The first is in the case of Deepak Rai Vs. State of Bihar, (2013) 10 SCC, 421 particularly paragraph no.87. Reference has been made to another Supreme Court decision namely that of Rajesh Kumar Vs. State through Government of NCT of Delhi (2011) 13 SCC, 706 to contend that even assuming for the sake of argument that the guilt is found to be proved then in view of the background of the case where the prosecution itself had set-up a story of revenge, the lesser punishment of life imprisonment would have been justified. He contends that even though the appellant deserves acquittal yet if the case is examined only on the issue of sentence, the judgment in the case of Rajesh Kumar (supra) particularly paragraph nos.71 and 81, the appellant deserves to be awarded a lesser punishment.
In order to support the aforesaid submissions he has also cited the judgment of the Apex Court in the case of Raja Ram Yadav and others Vs. State of Bihar, AIR 1996 SC, 1613 and the decision in the case of Mohinder Singh Vs. State of Punjab (2013) 3 SCC, 294.
Learned A.G.A. on the other hand submits that in view of the evidence and material on record the mitigating and aggravating circumstances if assessed in the light of the Apex Court judgment in the case of Bachan Singh Vs. State of Punjab 1980 (2) SCC, 684 the appellant does not appear to be entitled to any mercy from this Court. He submits that there is a clear repeated act on the part of the appellant for a revenge that may have been a cause against the father of the deceased children. He submits that there was absolutely no provocation or intimidation by the children who have lost their lives and who were incapable of any such activity so as to give a cause to the appellant to have murdered them. He therefore submits that the case being one of extreme depravity no leniency should be shown to the appellant and he deserves to be hanged until death.
We have considered the submissions raised and we have also perused the lower court records. In order to appreciate the genesis of the prosecution case from the point of view of the argument that has been advanced, more particularly on the issue of sentence, it would be appropriate to refer to the opening sentences of the first information report which narrates that the appellant appears to have committed this offence on account of some sort of brooding revenge that was continuously being cultivated by him on a belief to the effect that the complainant on account of having practiced some sort of sorcery had cursed a child of the appellant who had died a day before the incident at the age of 10 years. This story of the prosecution in the first information report was substantiated by PW-1 and PW-3 in their statements to indicate the cause of such revenge focusing towards the intent of the appellant to have committed the offence. In this background we find that the ocular testimony of PW-1 and PW-3 coupled with that of PW-2 categorically narrates in a consistent form about the manner of assault by the appellant. He is stated to have first assaulted the elder child Sahil and having slit open his throat he repeated the same action with the second child, Kartik who lay in a pool of blood at the scene of occurrence. When he rushed to catch hold of the third child namely, Golu who has deposed as PW-2, he was surrounded and apprehended on the spot. This is testified clearly by the witnesses being a day light incident. We do not find any dent in the narration of facts by either of these witnesses to conclude that the presence of the witnesses is doubtful and on the other hand the absence of the appellant is established.
To the contrary the appellant in his defence got himself examined as DW-1 and categorically narrated that he was apprehended on the spot. This part of the admission by the appellant of having been caught hold at the scene of occurrence and at the timing as described leaves no room for doubt that the presence of the appellant is clearly established. This being so the narration of facts by PW-1, PW-2 and PW-3 also establishes their presence as eye-witnesses and having witnessed the episode. It is correct that PW-1 did not actually see the slitting of the throat of the children but after he heard the hue and cry of his children he rushed out of his hut and immediately came on the spot whereafter the appellant was apprehended with the aid of members of the locality and the local police.
This entire evidence taken as a whole and narrated by all the three witnesses does not in any way dilute the basic theory of the prosecution as set-out in the first information report and developed during the trial leading to the evidence of the witnesses. The contention of Sri Chatterji is that the manner in which the appellant is said to have been apprehended ought to be looked from the point of view that the appellant has himself stated carrying one of the children as if to rescue him. We are unable to accept this contention more particularly when there is no evidence led by the defence to indicate about the participation and commission of the offence by any other person.
There is no theory even set-up by the defence in order to disbelieve the prosecution story moreso when DW-1 attempted to give a different picture of the existing enmity by alleging that his wife was time and again being teased by the complainant that was not proved. This story acts as a double edged weapon against the appellant inasmuch on the one hand he intends to demolish the case of the prosecution about the lurking revenge in the mind of the complainant and on the other hand it fails to establish that there was any such incident of teasing of his wife.
It has come in the evidence that the complainant/informant, Tinku Pal way back in the year 2002 had entered into some sort of a customary marriage with Smt. Hira Devi, who was admittedly the wife of his elder brother Umesh Chaudhary. This fact is not denied by the prosecution witnesses. Sri Chatterjee on the strength of this evidence has urged that the character of the complainant therefore did reflect that he may have been responsible for this incident he may be having doubts about the fidelity of his own wife Hira and the children begotten by her. The suggestion of the learned counsel is that the complainant himself may have attempted this dastardly act in order to remove the progeny which he may have believed to be that of his elder brother. We are unable to accept this contention and it deserves rejection outright inasmuch as if the fact that she was living with the informant since 2002 then keeping in view the age of the deceased children and PW-2 who was almost of 9 years of age at the time of the incident this theory of they being somebody else's children does not appeal to reason. This argument is oral with no such case or evidence of either side and therefore is neither a possibility or a probability worth believing.
At this stage the testimony of PW-3 may also be examined. Sri Chatterjee has urged that PW-3 was a partisan witness on account of the past differences between him and the wife of the accused. It is urged that DW-2 and DW-3 who appeared as defence witnesses, namely, Mahesh Manjhi and Smt Ranju Devi, the wife of the appellant had clearly indicated about the threats extended by PW-3 Mantu against Ranju Devi. This was on account of an old village enmity and marital relations. We have examined the said statement and we find that these were very old stories that were not sufficient to substantiate the plea of false implication due to enmity. If the enmity was so persistent, then in that event, the same was between Mantu and the family of the accused which had got nothing to do with the complainant. Merely because Mantu and the accused were friends cannot necessarily lead to the conclusion that PW-3 was giving an incorrect description about the incident. To the contrary, the own statement of DW-1 who is the accused, his wife DW-3 and his friend Mahesh Manjhi DW-2 establishes that the accused was carrying one of the children in his arms towards his rickshaw. DW-3 the wife has also stated that she had asked him as to why he was taking the child towards the rickshaw when all of a sudden the complainant appeared and started shouting that the accused had killed his sons. This testimony of the defence leaves no room for doubt about the presence of the appellant at the time of the incident in the company of one of the children. The allegation of Mantu's partisan attitude, therefore, becomes meaningless in the wake of this clinching material on record.
The argument with regard to the recovery of the weapon and the manner of arrest also does not appear to be in doubt at all inasmuch as the appellant was apprehended and he was taken into custody on the spot not only by local residents but with the aid of local police. The weapon of assault therefore must have been first taken into custody in order to over power the appellant keeping in view his attitude of having chased the third child and also allegedly extending threats to those who were trying to apprehend him. Thus the weapon as well as the appellant himself appear to have been immediately taken into custody and handed over to the police. The suggestion is that if this was so then there was no reason for the weapon having been handed-over by the informant who at that point of time is stated to have gone to the hospital with the body of his children and then returned back to the police station. We are not prepared to accept this inasmuch as the weapons having been sealed along with the custody of the appellant who was produced in the police station where the recovery memo was also prepared does not give rise to any suspicion or doubt. A stray statement of the Investigating Officer that the weapon had been recovered at the scene of occurrence clearly co-relates the same having been taken into custody upon having apprehended the appellant and taken to the police station. This does not amount to any material discrepancy so as to disbelieve the recovery of the weapon.
It is further submitted by Sri Chatterjee that the serological report only indicated the presence of blood but omits to mention the presence of human blood on the knife said to have been recovered. This omission in our opinion does not alter either the status of recovery or the utilization of the weapon inasmuch as the injury as recorded in the post-mortem report is clearly by a sharp object causing an incised wound. It was therefore not only possible but clearly probable that this was the weapon, the description whereof has been described by the witnesses, and which stands corroborated with the recovery memo, namely, that the size of the butt of the weapon was of the length of 7 hand fingers and a blade of an equal length. This description matches with that of a normal kitchen knife which has a 5" blade and which according to the testimony of the doctor was capable enough of causing the injuries resulting in the death of the deceased. In this view of the matter there is neither any discrepancy or short-fall in the manner of recovery of the weapon or its utilization for the commission of the offence.
Sri Chatterjee has urged that there was hardly any time between the incident and the lodging of the first information report for having completed the entire circuit by PW-1 and then making his presence available at the police station also. We are not prepared to accept this submission as the time gap is of almost one and a half hours. No evidence has been led on behalf of the defence inspite of three defence witnesses having been examined that the distance between the hospital, police station and the place of incident was such that it could not be covered by the appellant within the aforesaid time. His presence and the delivery of the bodies to the hospital for examination and then to another hospital for post-mortem was quite possible within one and a half hours with the appellant having being apprehended on the spot and handed-over to the police. The lodging of the first information report therefore being clearly in continuity of the sequence of events as unfolded in the prosecution story does not create any doubt much less a reasonable doubt as suggested by Sri Chatterjee.
We then come to the testimony of the other formal witnesses who have corroborated the entire incident and have clearly indicated that the cause of death, the manner of assault and the time of the incident all are inconformity with the description in the first information report as well as the testimony of the three witnesses.
The testimony of PW-2 was sought to be castigated on the ground that he was a child witness. In this regard the law has been elaborately discussed in a recent judgment which we have come across in the case of Mirajul Islam Sheik Vs. State of Kerala 2018 (1) Kerala Law Times, 454 where a learned Single Judge of the Kerala High Court has traced out the entire evolution of law on this subject including the test of Voire Dire on the strength whereof the testimony of a child has been found to be acceptable. The sum and substance of the said judgment is to the effect that it is not the age of the child but his understanding which is of relevance in order to make his testimony acceptable as evidence. In the instant case we find that PW-2 who was about 12 years of age at the time of deposition was put to queries by the trial court to assess his capability to adduce evidence at the very out-set of his testimony. After being satisfied the court then proceeded to record the statement of PW-2 and applying the principles of law referred to by us hereinabove we do not find any error in the procedure so adopted by the trial court so as to admit the evidence of PW-2.
Apart from this his statement is sought to be criticized by the learned counsel on the ground that on the one hand he very clearly narrates the episode, but on the query about the name of his playmates at the time of the incident and the name of the school where he was studying, he drew a blank and therefore his testimony appears to be a tutored testimony. The aforesaid argument does not appeal to us inasmuch as he has given the description of an incident where his own brothers have been murdered in day light while playing with him at the place of incident. The said child does not belong to an affluent family and it is on record that the appellant as well as the complainant are all garbage sweepers and petty scrap dealers. Their children are not therefore of prosperous families, and as suggested, may be street smart children, but at the same time the testimony can not be discarded merely because the witness was not able to disclose the name of his play-mates or the name of his school. It is quite possible that they may have been granted admission by any institution but in view of their social background it is still possible that they might still be doing the job of garbage sweepers with their parents instead of attending school. In such circumstances the contention that the statement of PW-2 was a tutored statement does not appeal to reason nor any such material is on record to indicate that PW-2 was heard being tutored by his parents or by the police to give a particular statement in a particular manner. Consequently for all the reasons hereinabove we find that the statement of PW-2 has sealed the fate of the appellant which stands corroborated by the testimony of PW-1 and PW-3.
In the background aforesaid it is substantially established on record that the appellant himself having not able to dislodge his presence, he was clearly apprehended on the spot with the weapon of assault and in view of our discussions and conclusions indicated above there is no room for doubt that the trial court was justified in arriving at the conclusion that the appellant was guilty of the offence.
Learned Amicus Curaie then proceeded to address the Court on the issue of sentence awarded by the trial court for which he contends that if a balance of the aggravating and mitigating circumstances is drawn out in the light of the law laid down by the Apex Court from time to time, the evidence on the basis whereof the prosecution has proceeded to urge for the ultimate death penalty itself indicates that the appellant had made out a case of certain mitigating circumstances which deserves the award of a lesser penalty. For this learned counsel has invited the attention of the Court to the judgments which are the locus classicus on the subject namely, Bachan Singh Vs. State of Punjab (supra) and the case of Machchi Singh Vs. State of Punjab, (1983) 3 SCC, 470. The law as developed thereafter has also been cited at the bar and the learned counsel has relied on the judgment in the case of Raja Ram Yadav and others Vs. State of Bihar (Supra) (Paragraph nos.15 and 17). It would be apt to mention that in this case the sentence of death penalty had been passed in an incident which was an outcome of an outrage between two communities and the solitary witness of the incident was a child aged about nine years. The second decision relied on by the learned counsel is that in the case of Mohinder Singh Vs. State of Punjab (supra) where the accused had murdered his wife and daughter. The basis of such outrage was about the wife involving the appellant therein in criminal cases registered against him. The third decision relied on by the learned counsel is a Three Judges decision in the case of Deepak Rai Vs. State of Bihar (supra) where also the entire family was wiped out yet the Apex Court proceeded to award a life imprisonment commuting the death sentence awarded to two of the appellants therein. In the very same case the Apex Court had referred to the judgement in the case of Rajesh Kumar Vs. State through Government of NCT of Delhi (supra). The Apex Court in the case of Rajesh Kumar Vs. State through Government of NCT of Delhi (supra) which is a Two Judges decision referred to the circumstances that were to be taken account at the time of awarding sentences in paragraph no.71 of the report and then the Court in paragraph no.81 went on to rely on the judgment in the case of Triveniben Vs. State of Gujarat, (1989) 1 SCC, 678 to observe that a death sentence can not be awarded if there is any mitigating circumstance in favour of the accused. This was further clarified positively by observing that all circumstances of the case should be aggravating. On the strength of the said judgments Sri Chatterjee submits that in the present case the trial court has proceeded to assess the circumstances, and while dealing with the mitigating circumstances had held that the events on record indicated that when the offence was committed, public life was left in disarray and chaos and therefore this would constitute a continuing threat to the society. Learned counsel submits that this conclusion drawn by the trial court is on the basis of the narration of the prosecution witnesses at the time of the occurrence where it is stated that the members of the locality who were witnessing the said incident ran away and shut themselves behind doors. He submits that this evidence stood contradicted by the evidence that the members of the locality and the local police rushed to the spot and immediately apprehended the appellant. He therefore contends that this evidence of the prosecution has been omitted to be considered by the trial court which clearly establishes that the picture of chaos and fear assumed by the trial court was not established on the basis of such evidence. To the contrary the members of the locality promptly reacted and instead of running away from the scene they over powered the appellant along with the aid of the local police who had immediately arrived and handed him over to the police station with the weapon of murder. Consequently, to draw a conclusion to that extent would not be in tune with the mitigating circumstances as explained in the judgments referred to hereinabove.
The next argument of Sri Chatterjee is that the trial court failed to discharge its obligation to assess that there was a probability of reformation and rehabilitation of the accused. On this count he further submits that the observations made by the Apex Court also require that the state shall by evidence prove that the accused does not satisfy the aforesaid conditions. He contends that inspite of opportunity having been given, no evidence was adduced during trial on the issue of reform and rehabilitation nor any such effort was being made by the State to prove by way of evidence that awarding of a lesser punishment would be justified as the accused was capable of being reformed and rehabilitated. He therefore contends that the aforesaid tests of mitigating circumstances did exist in the case of the appellant who was not found incapable of being reform and rehabilitation. To the contrary he contends that at even this appellate stage there is no evidence that the appellant was a hardened criminal engaged in any such activities nor is there any evidence that during the period of incarceration his behaviour has been such so as to not give him the benefit of reform and rehabilitation. The contention is that assuming for the sake of argument that the appellant had committed the murder on the basis of a wrong nurturing of belief in his mind, the extreme penalty of death according to the own case of the prosecution is not justified.
He therefore submits that the case in hand is not rarest of the rare case where death penalty ought to be awarded.
Countering the said submissions the learned AGA on the other hand contends that the trial court proceeded to conform to the provisions of Section 235 of the Criminal Procedure Code by giving ample opportunity both to the appellant, as well as, the prosecution by fixing another date for the pronouncement of sentence after the conviction had been announced. Thus no prejudice has been caused on this count and the trial court upon drawing a balancing account of the mitigating and aggravating factors has arrived at the correct conclusion. It is urged that the contention of the learned amicus curiae that there was no chaos or atmosphere of fear is not correct, inasmuch as, apart from the members of the locality there were other pilgrims and passers by who out of fear had fled away from the scene, and therefore, this grim atmosphere was an indicator of the impact of the incident on the society at large and taken collectively, it cannot be said that the horrendous nature of the crime did not account for the circumstances for awarding death penalty.
He further submits that the issue relating to reform and rehabilitation in the present case also does not come to the aid of the appellant because his attitude upon the commission of the offence does not appear to be remorseful. To the contrary in his evidence as DW-1 supported by DW-2 and DW-3, he has tried to save himself with a pretense of another line of dispute than that suggested by the prosecution. The appellant instead of accepting the fact that he was nurturing an illogical belief of curse, set up a defence that since his wife had been teased by the complainant, therefore he had been falsely implicated in the case and as such, denial of the incident does not indicate any sense of remorse, and therefore, there is no hope of either reform or rehabilitation. In the wake of these facts, the trial court did not commit any error in arriving at the conclusion of administering the extreme penalty of capital punishment to the appellant who on account of the nature of the crime and on account of his personal conduct as a criminal, the penalty imposed was adequate and cannot be described as disproportionate.
During the course of the argument, we had invited the learned Senior Counsel Sri Gopal Chaturvedi as a friend of the Court who assisted the Court in arriving at a just conclusion on the contentions so raised and the law on the subject. The issue of adducing evidence at the stage of the award of sentence under Sub-Section (2) of Section 235 of the Criminal Procedure Code was explained by him to urge that the hands of the Court are not tied down in such matters to allow the adducing of any evidence keeping in view the broad principles enshrined in Section 311 Cr.P.C. He submits that the words used in Section 311 are categorical to the effect that the evidence can be adduced at any stage of the proceedings, and consequently, for the purpose of sentencing, the Court can always allow introduction of any material in order to remove any doubt or cause any prejudice either to the accused or to the prosecution. He also submits that sentencing by itself is contained in a separate chapter in matters of capital punishment when it arrives for confirmation before the High Court which is Chapter XXVIII. He has urged that Section 366 read with Section 367 of Cr.P.C. empowers the Court to make any further enquiry or invite additional evidence in relation to the case in question. Section 368 being the stage of confirmation by the High Court, he submits that the power at the time of the pronouncing of the sentence by the trial court to receive any evidence is intact, and consequently, the aforesaid provisions should be kept in mind by the trial court while assessing the mitigating and aggravating circumstances of the case. He has cited a judgment of the Calcutta High Court reported in AIR 1943 Calcutta 521 Emperor Vs. Lal Mia to highlight the broad view to be observed by courts on this count.
On general principles with regard to a person suffering from an illogical belief and being the cause for the commission of the offence, he has urged that if the evidence which has been brought forth in this case is taken cumulatively into account then in that view of the matter there is a scope of enquiry into the issue of sentencing, inasmuch as, the accused has been alleged of a crime having been committed in the background that he nurtured a belief that he had lost his child who died a day before the incident, on account of some magical curse having been practiced by the complainant. Sri Chaturvedi, therefore, submits that the learned amicus curiae is correct in his submission that the very case of the prosecution about the issue of magical curse, clearly, establishes that the appellant was harboring a belief which may appear to be illogical, but the same appears to be highly probable to be the cause of the ultimate action taken by him to murder the two children of his neighbour whom he believed to have practicing the magical curse. He further explains this by an illustration in this very case to contend that one can possibly presume, that if this was the belief that was being harboured in the mind of the accused, then he could have taken this revenge on the complainant himself instead of his children, but Sri Chaturvedi submits that it is also probable that the appellant may have had in mind that his adversary should suffer the same pain that the appellant was suffering, namely, the pain of deprivation of his own progeny. He submits that when it comes to a case of schizophrenic and psychological imbalance that has been embedded in the mind for a very long period of time, then this sequence itself can possibly lead to such an action by an individual about which the probabilities cannot be ruled out. Sri Chaturvedi, therefore, submits that if this position is taken to be correct on the basis of the evidence already on record, then this is not a diabolical crime of the nature of acquiring property or causing offence to the human body for any human lust. This distinction, therefore, between the nature of the crime and coupled with the conduct of the criminal should be viewed while proceeding to award sentence which according to them, the trial court appears to have omitted. In the said background, Sri Chaturvedi, therefore contends that the Court may consider the request of the learned amicus curiae for awarding a lesser sentence.
We have given our thoughtful consideration to the valuable submissions made on behalf of the appellant by the learned amicus curiae, Sri Chatterjee and by Senior Counsel Sri Gopal Chaturvedi and the submissions of the learned AGA, Sri Ajit Ray on the issue of sentence with the aid of the authorities at hand.
When it comes to sentencing, the task of the Court becomes difficult and we are reminded of the observations made by some American jurists on this issue. Edward M. Davis in his interview on Human Events in 1975 observed "I think a judge's education is very imperfect when it comes to the sentencing process." While elaborating the same, a Judge of the Superior Court of the District of Columbia, Charles W. Halleck observed "You only have so many options when you sentence. You can put a defendant on probation, order him to be put on work-release and go to a half way house, or send him to an institution. But what it comes right down to is that there is no alternative that's any good. I guess you could call it a judge's dilemma."
In the matter of sentencing, the judgments of the Apex Court that have been referred to hereinabove need to be supplemented further as the law on this subject has also been evolved, keeping in mind a victim oriented approach as well. In this regard we find that the Apex Court proceeded to consider these aspects in more detail in the famous Nirbhaya case titled as Mukesh & Another Vs. State of NCT Delhi 2017 (6) SCC 1. In the said case also all these issues relating to sentencing including the opportunity to lead evidence and material was considered. The Court after having taken into account, the entire law on the subject exhaustively including the judgment in the case of Triveniben Vs. State of Gujarat (supra) which was relied upon in the case of Rajesh Kumar Vs. State through Government of NCT of Delhi (supra), by a three Judges pronouncement held that even though there are many mitigating factors, yet a death sentence can be awarded. This law, therefore, after taking into account the observations in the case of Triveniben Vs. State of Gujarat (supra) and Rajesh Kumar Vs. State through Government of NCT of Delhi (supra) gave a turn to the effect that it is not the absence of any of the factors or existence of only aggravating factors which is material, but a balance of the mitigating and aggravating factors has to be drawn. Thus in view of the aforesaid proposition laid down, we find it appropriate to follow the said ratio instead of the observations made in the case of Rajesh Kumar (supra) as referred to in the case of Deepak Rai relied on by the learned amicus curiae which was a three judges decision and has been considered in the subsequent decision in the case of Mukesh Vs. State (supra).
Apart from this, we may at the very outset clarify the legal position with regard to the doubt on the issue of adducing evidence and receiving the same by the trial court at the stage of sentencing. On a perusal of the provisions of Section 235(2) read with Section 311 and Section 367 Cr.P.C., what we find is that the Apex Court has clearly observed that an opportunity to administer such material for drawing out the balance sheet of the aggravating and mitigating circumstances has to be permitted and opportunity has to be given so as not to cause prejudice either to the accused or to the prosecution. This caveat is clearly pronounced in the judgment of the Apex Court which we have been able to lay our hands on with the help of our law clerks, namely, the judgment in the case of Ajay Pandit & Another Vs. State of Maharashtra 2012 (8) SCC 43. The principle has been extended to be applied to the reasons which are to be recorded in terms of Section 354 (3) Cr.P.C. and it has been held that while proceeding to draw the said balance sheet, any circumstance or material which may be necessary, including evidence, should be permitted to be led by the Court. In this regard, we may clarify that the provisions of Section 311 Cr.P.C. cannot be permitted to be invoked at the stage of sentencing to introduce any fresh evidence relating to the trial, inasmuch as, the guilt has already been found and the conviction has already been pronounced. In such circumstances an application under Section 311 Cr.P.C. for reopening the evidence on the issue of guilt cannot be permitted as the bar of Section 362 Cr.P.C. would immediately operate. Therefore, in order to, strike a balance and to understand the correct proposition of law, we hold in view of the law referred to hereinabove that evidence or material only to the extent of the issue of sentence can be permitted by the trial court while proceeding to pronounce the same at the stage of Sub-Section (2) of Section 235 of the Criminal Procedure Code. The powers of the Court do not stand reduced so as to deny the opportunity as contemplated under the statute. The court itself has the obligation to extend such opportunity for which it has ample powers as discussed above. The powers of the court to do complete justice and without prejudice is saved as pointed out by Sri Chaturvedi with the said of the observations made in the case of Emperor Vs. Lal Mia (supra). The obligation cast on the Court inheres in it the acknowledgment of the power which the Court has to and must exercise while awarding sentence.
Having said so, we now proceed to consider the background and the arguments which have been advanced in relation to the issue of sentencing. There are innumerable authorities on sentencing and one of them is "How Judges Sentence" by Geraldine Mackenzie". The background in which such assessment has to be made has been laid down in the various decisions referred to hereinabove and the authorities where the Court proceeds to balance the account in order to exercise its discretion including human factors, the constraints which have to be exercised by the Court while awarding sentence and the options open under the law. The purpose for sentencing should also not be lost sight of and which should also include rehabilitation, deterrence, denunciation, protection as also principles of restorative justice. The consequences also have to be kept in mind, namely, its impact on society and its impact on the general community.
Before we delve into the circumstances of this case, it is apt to understand the meaning of the word mitigating in relation to circumstances in ordinary legal parlance. Mitigation means lessening of harshness. It is moderation and reduction of dimensions, that which diminishes gravity. It allows toning down the magnitude thereby shrinking the severity by a refining process. It is palliation of proportion by a method that can be conveniently understood as the flattening of a piece of metal with a mallet into thin foils thereby reducing its crude form to a finer product. The process is to draw out to thinness without disturbing it's real content. A judge might mitigate his sentence upon a person convicted of stealing a loaf of bread if it was proved that the prisoner was penniless and starving at the time though he had tried to get work. The result would probably be to lessen or mitigate the severity of the punishment thereby rendering it less painful.
Keeping all these factors in view, we now proceed to examine the facts of the present case.
The appellant in the basic case disclosed in the FIR was accused of having confirmed doubts about the complainant practicing a magical curse that is alleged to have resulted into the death of the son of the appellant who was a ten year old child just one day before the incident. According to DW-3, wife of the appellant they had lost their six children in the past which fact is categorically stated by her deposition before the Court. This statement therefore confirms the allegations of the doubt of casting of a curse by the appellant.
At this stage itself, we would bring in the counter statement made by the accused in his defence evidence while deposing as DW-1. The accused in his attempt to save himself, may be on legal advice, set up a pretense that he had been falsely implicated on account of his wife having been teased by the complainant. This could not be proved by the defence by leading any further evidence, and therefore, the trial court did not accept this defence of the appellant. The evidence, therefore, stood rejected and we also, having arrived at the same conclusion on the findings on guilt, are of the same opinion.
In this background, if the defence was a false pretext by the appellant in order to save himself from getting convicted, the same cannot wipe of the prosecution story, inasmuch as, the prosecution has proved its case to the hilt. We are observing this after having gone through the case diary. In the statement under Section 161 Cr.P.C., the accused upon being apprehended was categorical in stating before the Investigating Officer that he committed the murder of the two children deliberately in order to take revenge on his neighbour who had practiced a magical curse that had resulted in the loss of life of his own progeny. Not only this, the statement of PW-1 during investigation also supports the same theory. In this background, we do not find any contradiction at the stage of investigation or even thereafter during trial about the cause of the incident. It is probable that an intent may have developed in the mind of the appellant which may have had its consequences in the ultimate manifestation of the offence. In order to analyse this, we may further go a step ahead to assume that the appellant cannot be expected while standing in the dock to make a confession which is self incriminating, and it is therefore quite possible that he may have contradicted himself and may have gone haywire and set up a defence on account of his mixed reactions to the legal advice or his own understanding of law. It should not be kept out of mind that the status of the appellant is that of a garbage sweeper who collects scrap for his livelihood and the same is the status of the complainant. There is one other factor which can be taken into consideration, namely, the appellant may have been in absolute financial constraints and he could not afford to have any lawyer behind him, as a result whereof, he was afforded an amicus curiae by the Court which is evident from the narration of the facts in the trial court. In the above background, we can safely presume of hardly any interaction between the amicus curiae and the accused which is also not borne out from the record.
In order to understand the correct state of his mind one may have to ponder, but the evidence which has come on record reflects the existence of stressful circumstances. In order to further analyze the argument of the learned AGA that there did not exist any sense of remorse in the appellant for consideration of awarding a lesser punishment in this background, it would be appropriate to visualize the psychology of such a person who does not have any past criminal history. The appellant in his statement under Section 161 Cr.P.C. did not show any sense of remorse and on the other hand he reaffirmed his illogical belief of the magical curse cast by his neighbour. Thus, even if, remorse was not existing and it was his obstinate and obsessive belief that he had lost his children on account of the magical curse, then there is no reason to discard this mental state of the appellant at the time of the commission of the offence. The status of his mind may be construed as that of a sudden anger, but there was no material adduced by the prosecution that the act of the appellant was on account of any sudden provocation. It was a dastardly act but not in the dark of the night. It was in broad day light while children were playing. This, therefore, necessarily implies that some sudden impulse did motivate the appellant to commit the said offence and which may have been the cremation of his son a day earlier, but the agony of the mind and the sufferance caused to him by the repeated loss of children, piled up in a number of years resulting in a sort of distorted belief that it was on account of a magical curse. This distorted belief in the mind of the appellant may have led him to take a revenge on the children of his neighbour instead of his neighbour himself in order to make him suffer a pain of the same magnanimity that was being experienced by him. This traumatic state of mind may have led the appellant succumbing to circumstances when he ultimately ventilated his revenge on the basis of an illogical and super natural cause which had its genesis in the allegation of a magical curse, not by the appellant, but throughout by the prosecution itself. We can infer that with no resources available for reforming himself, he brooded over his own illogical belief. He did not have the advantage of any sound counselling or any such company which may have been made available to him for the purpose of dispelling his doubts about any magical curse. To the contrary in the surroundings and the locality in which he was living, it is all the more probable that this magical curse which was brooding in his mind pented up to the stage of saturation where the appellant believed that his son was the last straw that was lost. He had no opportunity therefore to understand either by way of any medical or psychological help or any other counselling through any source so as not to commit this offence. It may quite be possible that not only the appellant, his wife may also have been nurturing such belief. The background, therefore, must have led to some sort of a mixed delusion in the mind of the appellant, and therefore, instead of reacting upon himself, he selected the object of his ventilation by proceeding to cause the death of the children of his neighbour which he found to be a tangible object of manifesting it on account of his illogical belief and reasoning.
We cannot delve anything further, inasmuch as, the evidence that has been brought forth only indicates this state of mind which was probably an outcome of some palpable falsehood in the mind of the appellant. The appellant was doing nothing else but manifesting his revenge on a suspicion based on a blind super natural faith of which he was the sole author. His ideas, therefore, to take the life of two children appears to be founded on his continuous and constant bereavement that he had suffered due to the death of his own children which he erroneously believed to be truthful on account of the magical curse cast by his own neighbour. In this background, the question of remorse would come into play only if the appellant is given an opportunity of mental counselling or such company of good behaviour where he can rehabilitate or reform himself. We do not find any such evidence but at the same time, we do not find any evidence led by the prosecution to show that such an attempt if undertaken would not reform or rehabilitate the appellant. The trial court has completely omitted this part of the obligation and rested it's conclusion only on the gravity of the offence.
There is yet another dimension which deserves mention, namely, there is no other suggestion of an alternative hypothesis like an intention to usurp property, a gang war or a diabolical murder, treason or high conspiracy, extortion or kidnapping or even murder for ransom. The faint suggestion of the wife of the accused being teased was not proved by the defence, and therefore, there was no visible enmity or cause as illustrated above that may impel us to treat the crime to be of such a grave nature in order to award death penalty.
In view of all the reasons and the conclusions drawn hereinabove, we find this to be a fit case where the extreme penalty of capital punishment deserves to be commuted to life imprisonment. This case travels out of the category of rarest of the rare cases, and therefore, we find it just and proper on the facts of the present case to impose a lesser penalty.
We accordingly uphold the conviction of the appellant but in the given circumstances of the case commute the death penalty awarded to the appellant into life imprisonment, which shall be accordingly executed. The reference for confirming the death sentence is hereby rejected.
The appeal is partly allowed on the point of sentence.
Let a copy of the judgment be sent to the trial court for necessary action.
We further direct the Registrar General who may issue necessary orders for payment of fee to Sri Chetan Chatterjee for having assisted this Court as amicus curiae in this case through the Legal Services Aid Authority of Allahabad High Court for payment of Rs. 25,000/-. The same may be paid forthwith.
Order date:- 20.07.2018 S.Chaurasia/R/-