Jharkhand High Court
The State Of Jharkhand vs Santosh Kumar Mahato @ Santosh Mahato on 28 August, 2024
Death Reference No.02 of 2023
WITH
Criminal Appeal (DB) 494 of 2023
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ARISING OUT OF THE JUDGMENT OF
CONVICTION DATED 23RD FEBRUARY, 2023
AND ORDER OF SENTENCE DATED 28TH
FEBRUARY, 2023 PASSED BY ADDITIONAL
SESSIONS JUDGE X, DHANBAD IN SESSIONS
TRIAL NO. 336 OF 2018.
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In Death Reference No.02 of 2023
The State of Jharkhand ... Appellant
-versus-
Santosh Kumar Mahato @ Santosh Mahato, son of Late Dwarika
Prasad Mahato, resident of Birajpur, PO Birajpur, PS Barwadda,
District Dhanbad (Jharkhand).
... Respondent
----
In Criminal Appeal (DB) No.494 of 2023
Santosh Kumar Mahato @ Santosh Mahato, son of Late Dwarika
Prasad Mahato, resident of Birajpur, PO Birajpur, PS Barwadda,
District Dhanbad (Jharkhand).
... Appellant
-versus-
The State of Jharkhand ... Respondent
----
For the Appellant : Mr. A.K. Kashyap, Sr. Advocate
Ms. Leena Shakti, Advocate
[in Cr. Appeal (DB) No.494 of 2023]
For the State : Mr. Pankaj Kumar, P.P.
[in both the cases]
For the Informant : Md. Zaid Ahmed, Advocate
[in Cr. Appeal (DB) No.494 of 2023]
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PRESENT: SRI ANANDA SEN, J.
SRI GAUTAM KUMAR CHOUDHARY, J.
----
JUDGMENT
By Court The Death Reference and the connected Criminal Appeal arise out of judgment of conviction dated 23rd February, 2023 and order of sentence dated 28th February, 2023 passed in Sessions Trial No.336 of 2018, whereby and whereunder learned Additional Sessions Judge X, Dhanbad has convicted the appellant in Cr. Appeal (DB) No.494 of 2023 for the offences under Sections 307, 323, 341, 324, 325 and 302 of the Indian Penal Code and he has been sentenced with punishment of death for the offence under Section 302 of the Indian Penal Code, subject to confirmation 1 Death Reference No. 02 of 2023 WITH Cr. Appeal (DB) No.494 of 2023 by the Hon'ble High Court and further for the offence under Section 307 of the Indian Penal Code, appellant has been sentenced to undergo rigorous imprisonment for 10 years and fine of Rs.2,00,000/- (Rupees Two Lakh) and in case of none payment of fine he will have to undergo additional simple imprisonment for six months; further for the offence under Section 325 of the Indian Penal Code, appellant has been sentenced to undergo rigorous imprisonment for 7 years and to pay fine of Rs.50,000/- (Rupees Fifty Thousand) and in default of non payment of fine, he has further been sentenced to undergo additional simple imprisonment for six months, however, he has not been awarded any specific punishment for offences under Sections 341 and 323 of the Indian Penal Code.
2. Learned counsel appearing on behalf of the convict-appellant submits that this is not the case where the appellant could have been convicted under Section 302 of the Indian Penal Code. He submits that the entire incident occurred at the spur of the moment as there was a dispute in respect of partitioning of the property and because of property dispute, entire incident had occurred. He submits that since at the spur of the moment and in heat of passion, this incident had occurred, the same will come within the ambit of Section 304 Part II of the Indian Penal Code. On the point of sentence, he submits that once the conviction is converted from Section 302 of the Indian Penal Code to Section 304 Part II of the Indian Penal Code, death sentence automatically gets extinguished.
3. Learned counsel appearing for the State submits that the appellant has a previous history as it is apparent from the First Information Report that he was in custody earlier. He committed murder of his own elder brother by sword. There are eye witnesses to the occurrence and injured witness is none but close relative of both the appellant and the deceased and their testimony cannot be disbelieved. Injured witness also supports the prosecution case. The ghastly murder was committed by the appellant and number of blows on the deceased suggests that this is a rarest of rare case, which calls for capital punishment.
4. The convict-appellant has been charged and convicted for the offences under Sections 307, 323, 341, 324, 325 and 302 of the Indian Penal Code. The prosecution case is based upon the fardbeyan of Laxmi Devi wife of Prem Ram Mahto @ Pintu at Village Birajpur, PS Barwadda, 2 Death Reference No. 02 of 2023 WITH Cr. Appeal (DB) No.494 of 2023 District Dhanbad, recorded by A.S.I. Pradip Kumar Sudhanshu, Barwadda Police Station on 06.04.2018 at 09.55 Hrs., wherein it has been narrated that on 06.04.2018, informant, her husband and her month Chinta Devi were at home. Her sister-in-law (Nanad) Agni Devi was also at their home. There is an old dispute regarding partition of property among her husband, her elder brother-in-law (Bhainsur) Santosh Mahto and brother-in-law (Dewar) Moti Ram Mahto. Her elder brother-in-law (Bhainsur) after returning from jail on release was putting pressure on her husband for partition. Her sister-in-law (Nanad) Agni Devi was asking for partition. On that day at about 09.00 Hrs. appellant Santosh Mahto started quarreling with her husband (deceased). On this, her husband went outside the home and sat on a pirha having child in his lap. Her sister-in-law was talking with the deceased for partition, at that time her elder brother-in-law (appellant) shouted from the roof that he will kill him (deceased) today. In the meantime, her brother-in-law (dewar) Moti Ram Mahto also shouted on her husband that he will not leave him (deceased). When her husband (deceased) from the alley was opening door of the room, appellant brought a sword from inside the home and started assaulting her husband (deceased) at the verandah adjacent to the bathroom due to which blood started oozing from the body of the deceased and he fell in an injured state. At the time of occurrence she and her mother were standing in front. When her mother went to forbade, appellant also assaulted her by sword due to which she was injured. Appellant also tried to assault her but she escaped and saved her life. Thereafter her elder brother-in-law out of fear attempted to commit suicide by hanging himself. In the meantime, police came and her husband and her elder brother-in-law (appellant) were taken to the hospital. At the time of quarrel, her sister-in-law (Gotni) Veena Devi was also at home. She claimed that the appellant with an intention to kill has assaulted her husband with sword due to which her husband was seriously injured. She stated that apart from the appellant, her brother-in-law (dewar) Moti Ram Mahto, her sister-in-law (Gotani) Veena Devi and her sister-in-law (Nanad) Agni Devi were involved in the occurrence.
5. On the basis of the aforesaid fardbeyan of the informant, Barwadda P.S. Case No. 67 of 2018 was registered as against the appellant and others for the offence under Sections 341, 323, 324, 325, 326, 307, 120B of the Indian Penal Code and later on Section 302 of the Indian Penal 3 Death Reference No. 02 of 2023 WITH Cr. Appeal (DB) No.494 of 2023 Code was added.
Police, after completion of investigation, submitted charge sheet for offences under Sections 302, 341, 323, 324, 325, 326, 307, 120B of the Indian Penal Code as against the appellant, keeping the investigation pending against the other accused. Accordingly, cognizance of the offence was taken and the case was committed to the Court of Sessions for trial.
6. To prove its case, the prosecution had produced 11 (eleven) witnesses, who are as follows;
P.W.1 Tikam Chandra Mahato P.W.2 Dr. Vineet P. Tigga P.W.3 Chinta Devi P.W.4 Dhananjay Mahato P.W.5 Jodhan Rabidas P.W.6 Mithun Das P.W.7 Bhuchu Lal Das P.W.8 Lakshmi Devi P.W.9 Dr. Surendra Kumar Prasad P.W.10 Pradeep Kumar Shudhansu P.W.11 Jwala Kumar Nanda The prosecution also produced following documents to substantiate its case, which were marked exhibits:-
Ext.1 Signature of witness Tikam Chandra Mahato on inquest report Ext.2 Postmortem report Ext.3 Signature of PW 5 on seizure list Ext.3/1 Signature of PW 6 on seizure list Ext. 3/2 Signature of PW 7 on the seizure list dt. 06.04.18 at 10.40 O'Clock Ext.3/3 Signature of PW 7 on seizure list dt. 06.04.18 at 10.20 O'Clock Ext.3/4 Signature of PW 7 on the seizure list dt. 06.04.18 at 11.20 O' Clock Ext.3/5 Signature of Laxmi Devi on seizure list on 06.04.18 at 10.40 p.m. Ext.4 Signature of informant on fardbeyan of FIR Ext. 4/1 Fardbeyan Ext.4/2 Endorsement on fardbeyan Ext.5 First Injury report of Chinta Devi Ext.5/1 Second injury report of Chinta Devi Ext. 6, Three seizure lists 6/1, 6/2 4 Death Reference No. 02 of 2023 WITH Cr. Appeal (DB) No.494 of 2023 Ext.7 Certified copy of judgment of ST 325/2001 Ext.8 F.S.A.L. Report Ext.9 Letter No.2042/- dt. 02.06.2022 of Forensic Science Laboratory
7. P.W. - 1 (Tikam Chandra Mahato), is the father-in-law of Prem Ram Mahato (deceased) and is a hearsay witness. He deposed that he was told about the occurrence by Dukhu Mahto that Santosh Mahto (appellant) has assaulted his son-in-law by sword. He further deposed that he had seen the injury on the body of his son-in-law Prem Ram Mahto and his wife Chinta Devi. He has proved his signature on the Inquest report of the dead body of his son-in-law, which was marked as Exhibit 1.
P.W. 2 (Dr. Vineet P.Tigga), is the Doctor, who had conducted the Post-mortem of the dead body of the deceased Prem Ram Mahto @ Pintu and found the following:-
Ante mortem external wounds found over the person of the deceased:
(i) Stitched wound
(a) 3" long with 3 stitches over right parietal region of head, situated perpendicularly
(b) 6" long with 4 stitches on left side fronto parietal region of head, situated perpendicularly.
(c) 3.5" long with 3 stitches over left parietal region of head, situated perpendicularly. Scalp hairs cut short around the wounds.
(d) 7" long with 9 stitches over left side of forehead, lateral side of left eyebrow, left cheek (medial aspect), left side upper and lower lip and left side of chin. Left eyeball found lacerated. On removing the stitches left orbital plate and left zygomatic found fractured. Left side maxilla found fractured at the level between lateral incisor and canine.
(e) 3.5" long with 5 stitches on back left eyebrow situated vertically.
(f) 1.5" long with 1 stitch on dorsum of left hand near base of little finger.
(g) 1.25" long with 3 stitches over lower part front of right side of chest near mid line in the sixth intercoastal space.
(h) 1" long with 1 stitch on lower part front of left forearm, situated obliquely.
(ii) Chop wound at the level of nail bed of middle and right finger of right hand. Separated lower part absent.
(iii) Perforating wound (wound of exit) of size 0.25" x 1/6" x cavity deep on lower third back of right side of chest in the ninth intercoastal space having everted margins.
(iv) Abrasion 2" x 1" on upper part of right scapular region.
(v) Incised wound
(a) 2.5" x 1/6" x skin deep on top of right shoulder with tailing on the front.
(b) 2" x 1/6" x skin deep on upper part front of right side of chest with tailing on the upper part.
On dissection : Ecchymosis with blood clots found beneath subcutaneous tissue of scalp over frontal and both parietal region. Bevelling cuts found underneath injury No.i(a) in the outer table of 5 Death Reference No. 02 of 2023 WITH Cr. Appeal (DB) No.494 of 2023 right parietal bone. Clean and sharp cut found underneath injury No.i(b) of left fronto parietal bone and meninges found cleany cut and full of blood clots. Bevelling cuts found underneath injury No. i(c) in the outer and inner table of left parietal bone. Depressed fracture of size 1" x 0.75" over left parietal bone, between injury No.i(b) and (c). On exploration of injury No.i(g) it was found to be perforating wound of entrance of perforating wound of exit injury No.iii. The track was found perforating the liver and diaphragm and blood and blood clots found all over the chest and abdominal cavity. Stomach contained about 400cc. of blood. Heart and bladder found empty. All other internal organs found pale.
Time elapsed since death - 4 hours to 8 hours.
Cause of death - Death was due to haemorrhage and shock as a result of sharp cutting injuries as mentioned about caused by heavy and sharp cutting weapon having pointed tip. However, the exact nature and extent of the injuries can be described by the treating surgeon.
He has proved the Post-mortem report which was marked as Exhibit 2.
P.W.3 (Chinta Devi), is the mother-in-law of Prem Ram Mahato (deceased) and is also an injured eye witness of the occurrence. She deposed that Santosh Mahto has assaulted 10-12 times on Prem Ram Mahato by sword and when she tried to save her son-in-law then Santosh Mahto assaulted on her neck due to which there is cut injury on her neck and then she was also assaulted on her right hand and elbow, due which it get broken and she get plastered on it.
P.W.4 (Dhananjay Mahato) is a hearsay witness. He was told about the occurrence by Tikam Chandra Mahato (P.W. -1) P.W.5 (Jodhan Ravidas) was declared hostile by the prosecution. He proved his signature on the seizure list, which was marked as Exhibit 3.
P.W.6 (Mithun Das) was also declared hostile by the prosecution. He has proved his signature on the seizure list which was marked as Exhibit 3/1.
P.W.7 (Bhuchu Lal Das) was also declared hostile by the prosecution. He deposed that he made his signature in the seizure lists dated 06.04.2018 at 10.40 hrs, 10.20 hrs and 11.20 hrs which were marked as Exhibits 3/2, 3/3 and 3/4 respectively.
P.W.8 (Lakshmi Devi) is the informant of this case and is wife of Prem Ram Mahto (deceased). She is an eye witness to the occurrence. She deposed that Santosh Mahto (appellant) had assaulted her husband by sword on his head, mouth, hand and stomach and when her mother Chinta 6 Death Reference No. 02 of 2023 WITH Cr. Appeal (DB) No.494 of 2023 Devi (P.W.3) tried to save her husband, Santosh Mahto assaulted her mother also with sword on her shoulder and wrist of right hand due to which shoulder of her mother fractured. She further deposed that even the appellant ran to kill her but she saved herself by running away from there. She has proved her signature on the fardbeyan which was marked as Exhibit 4 and has also proved her signature on the seizure list which was marked as Exhibit 3/5.
P.W.9 (Dr. Surendra Kumar Prasad) is the Doctor who had examined the injured witness Chinta Devi (P.W.3) and found the following injuries on her body:-
(i) Incised wound right shoulders 3" x ½" x Muscle deep.
bleeding plus advised X-ray right shoulder Ap/lateral.
(ii) Incised wound right forearm above wrist 2" x ½" x Muscle deep. bleeding plus advised X-ray right forearm including wrist.
(iii) Plain and swelling left shoulder advised X-ray Ap/lateral.
(iv) Age of injury within 6 hours.
(v) Supplementary injury report of Chinta Devi vide registration No. 1103 dated 06.04.2018.
(vi) For injury No.1 No X-ray plate nor report is available so the opinion is still kept reserved.
(vii) For injury No.2 X-ray right forearm plate No 2073 dt. 07.04.2018 reports is NAD so the injury is simple in nature caused by the sharp cutting substance.
(viii) For injury No.3 X- ray Chest PA radiology department P.M.C.H. plate No 2128 dt. 10.04.2018 fracture of left clavicle. So the injury is grievous in nature. Caused by heard and blunt substance.
(IX) Injury No.1 and 2 caused by the sharp cutting substance.
He has proved the injury report Nos.1 and 2 of Chinta Devi i.e marked as Ext. 5 and 5/1 respectively.
P.W.10 (Pradeep Kumar Shudhansu) is the Investigating Officer of this case and he has proved the fardbeyan written by him and endorsement on the fardbeyan in the writing and signature of Officer-in- charge Dinesh Kumar, which were marked as Exhibit 4/1 and 4/2 respectively. He has given description of the place of occurrence. He has also proved three seizure lists and Inquest report which were marked as Ext.6, 6/1,6/2 and 1/1 respectively.
7 Death Reference No. 02 of 2023WITH Cr. Appeal (DB) No.494 of 2023 P.W.11 (Jwala Kumar Nanda) was posted as Assistant Scientist in Directorate of Vidhi Bigyan and Laboratory, Hotwar, Ranchi on 01.10.2018. He deposed that as per letter dated 02.06.2022 issued by Vidhi Bigyan Directorate which is in the signature of Joint deputy Director, B.K.Thakur he came in the court as a witness. He has proved the letter dated 02.06.2022 which was marked as Exhibit 9.
8. After closure of prosecution evidence, the statement of the appellant was recorded under Section 313 Cr.P.C in which he claimed to be innocent.
9. The trial court after hearing the arguments and appreciating the evidences on record, by a judgment of conviction dated 23rd February, 2023 and order of sentence dated 28th February, 2023 passed in Sessions Trial No.336 of 2018, has convicted the appellant in Cr. Appeal (DB) No.494 of 2023 for the offences under Sections 307, 323, 341, 324, 325, 302 of the Indian Penal Code and he has been sentenced with punishment of death for the offence under Section 302 of the Indian Penal Code, subject to confirmation by the Hon'ble High Court and further for the offence under Section 307 of the Indian Penal Code, appellant has been sentenced to undergo rigorous imprisonment for 10 years and fine of Rs.2,00,000/- (Rupees Two Lakh) and in case of none payment of fine he will have to undergo additional simple imprisonment for six months; further for the offence under Section 325 of the Indian Penal Code, appellant has been sentenced to undergo rigorous imprisonment for 7 years and to pay fine of Rs.50,000/- (Rupees Fifty Thousand) and in default of non payment of fine, he has further been sentenced to undergo additional simple imprisonment for six months.
10. After hearing the learned counsel for the parties we have gone through the records of this case.
11. From the oral and documentary evidence led by the prosecution, we find that P.W.2 is the doctor, who conducted the postmortem examination. He found several injuries on the person of the deceased. The injuries were on right and left parietal region of the head, face, fingers and hand. There was perforated wound also on the right side of the chest. There were incised wound on shoulder and upper part of the chest. The cause of death was due to hemorrhage and shock, as a result of 8 Death Reference No. 02 of 2023 WITH Cr. Appeal (DB) No.494 of 2023 sharp cut injuries. Evidence clearly suggests that the death is homicidal because of sharp cut injuries. Be it noted that it is the allegation and evidence that the deceased was attacked by the appellant with sword, which definitely is a sharp cutting weapon.
12. Now on the issue of involvement of this appellant in the crime, we find that P.W.3, P.W.8 are the eye witnesses. P.W.8 is the informant of the case and the wife of the deceased. She clearly stated that this appellant has assaulted her husband by sword on the head, mouth, hand and stomach. Her statement is corroborated by medical evidence, i.e., Postmortem Report. She also stated that her mother, i.e., mother-in-law of the deceased was also assaulted by this appellant. The mother-in-law of the deceased is P.W.3, who is an injured witness. She also stated that the deceased was assaulted 10-12 times by sword. This witness tried to save the deceased, but she had also been assaulted on her neck and on her right hand and elbow. She stated that there was fracture of her hand and elbow.
13. P.W.9 is the doctor, who had treated P.W.3. He found incised wound on the right shoulder of P.W.3, on right forearm and right shoulder also. The doctor opined that some of the injuries are simple and some are grave. He gave details about the same. Injury Nos.1 and 2 were caused by sharp cutting substance and grave injury was caused by hard and blunt substance. Thus, evidence of P.W.8 also read with the doctor's report suggests that P.W.8 is the injured witness.
14. The fact that there is injured witness proves that the said witness was present at the time of occurrence.
15. The Hon'ble Supreme Court in the case of Jodhan versus State of M.P. reported in (2015) 11 SCC 52 has held that an injured witness should be kept on higher pedestal. The Hon'ble Supreme Court at paragraph 28 of the said judgment has observed as under: -
"Tested on the backdrop of the aforesaid enunciation of law, we are unable to accept the submission of the learned counsel for the appellant that the High Court has fallen into error by placing reliance on the evidence of the said prosecution witnesses. The submission that when other witnesses have turned hostile, the version of these witnesses also should have been discredited does not commend acceptance, for there is no rule of evidence that the testimony of the interest witnesses is to be rejected 9 Death Reference No. 02 of 2023 WITH Cr. Appeal (DB) No.494 of 2023 solely because other independent witnesses who have been cited by the prosecution have turned hostile. Additionally, we may note with profit that these witnesses had sustained injuries and their evidence as we find is cogent and reliable. A testimony of an injured witness stands on a higher pedestal than other witnesses. In Abdul Sayeed v. State of M.P. [Abdul Sayeed v. State of M.P., (2010) 10 SCC 259 : (2010) 3 SCC (Cri) 1262], it has been observed that: (SCC p. 271, para 28) "28. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone."
It has been also reiterated that convincing evidence is required to discredit an injured witness. Be it stated, the opinion was expressed by placing reliance upon Ramlagan Singh v. State of Bihar [Ramlagan Singh v. State of Bihar, (1973) 3 SCC 881 : 1973 SCC (Cri) 563], Malkhan Singh v. State of U.P. [Malkhan Singh v. State of U.P., (1975) 3 SCC 311 : 1974 SCC (Cri) 919], Vishnu v. State of Rajasthan [Vishnu v. State of Rajasthan, (2009) 10 SCC 477 : (2010) 1 SCC (Cri) 302], Balraje v. State of Maharashtra [Balraje v. State of Maharashtra, (2010) 6 SCC 673 : (2010) 3 SCC (Cri) 211] and Jarnail Singh v. State of Punjab [Jarnail Singh v. State of Punjab, (2009) 9 SCC 719 : (2010) 1 SCC (Cri) 107]"
16. The murder weapon, i.e., the sword was seized. The same was sent to the Forensic Science Laboratory. Blood sample of the deceased was also sent. Both the samples of sword and DNA matched, which clearly suggests that the sword was used in commission of the offence to commit murder of the deceased.
17. Rest of the witnesses, i.e., P.W.1, P.W.4 are hearsay witnesses, whereas P.W.5, P.W.6 and P.W.7 were declared hostile. Though P.W.7 admitted that he has signed the seizure list. Thus, from the evidence led by the prosecution, beyond any iota of doubt, the prosecution has proved the guilt of this appellant to the effect that he has committed murder of the deceased.10 Death Reference No. 02 of 2023
WITH Cr. Appeal (DB) No.494 of 2023
18. Once we come to the aforesaid conclusion, we reject the submission of the learned counsel for the appellant that the case would fall within Section 304(II) of the Indian Penal Code. From the evidence led by the prosecution, by no stretch of imagination, case would fall within Section 304(II) of the Indian Penal Code as the appellant had an intention to commit murder of the deceased, he had knowledge that the assault made by him would result in death of the deceased. He gave numerous blows on the deceased, resulting in his death. He also assaulted P.W.3, who tried to save the deceased. This leads to the only conclusion that the appellant is guilty of committing murder, punishable under Section 302 of the Indian Penal Code.
19. Now, the question is of sentence. The Trial Court has sentenced the appellant to death.
20. The Hon'ble Supreme Court, in the case of Manoj Pratap Singh versus State of Rajasthan reported in (2022) 9 SCC 81 at paragraph 83 and 84 thereof has observed as under: -
"83. We need not elongate this discussion by assembling various other decisions rendered in variegated circumstances and factual matrices but deem it appropriate to refer to the decision in Shankar Kisanrao Khade v. State of Maharashtra [Shankar Kisanrao Khade v. State of Maharashtra, (2013) 5 SCC 546 : (2013) 3 SCC (Cri) 402] , wherein this Court surveyed a large number of cases on either side, that is, where death sentence was upheld/awarded or where it was commuted; and pointed out the requirement of applying "crime test", "criminal test" and "rarest of rare test". This Court recounted, with reference to previous decisions, the aggravating circumstances (crime test) and the mitigating circumstances (criminal test) as follows : (SCC pp. 574-75, para 49) "49. In Bachan Singh [Bachan Singh v. State of Punjab, (1980) 2 SCC 684 : 1980 SCC (Cri) 580] and Machhi Singh [Machhi Singh v. State of Punjab, (1983) 3 SCC 470 :
1983 SCC (Cri) 681] , this Court laid down various principles for awarding sentence : (Rajendra Pralhadrao case [Rajendra Pralhadrao Wasnik v. State of Maharashtra, (2012) 4 SCC 37 : (2012) 2 SCC (Cri) 30] , SCC pp. 47-48, para
33) '33. ... Aggravating circumstances -- (Crime test) (1) The offences relating to the commission of heinous crimes like murder, rape, armed dacoity, kidnapping, etc. by the accused with a prior record of conviction for capital felony or offences committed by the person having a substantial history of serious assaults and criminal convictions.
(2) The offence was committed while the offender was engaged in the commission of another serious offence. (3) The offence was committed with the intention to create a fear psychosis in the public at large and was committed in a 11 Death Reference No. 02 of 2023 WITH Cr. Appeal (DB) No.494 of 2023 public place by a weapon or device which clearly could be hazardous to the life of more than one person. (4) The offence of murder was committed for ransom or like offences to receive money or monetary benefits. (5) Hired killings.
(6) The offence was committed outrageously for want only while involving inhumane treatment and torture to the victim.
(7) The offence was committed by a person while in lawful custody.
(8) The murder or the offence was committed to prevent a person lawfully carrying out his duty like arrest or custody in a place of lawful confinement of himself or another. For instance, murder is of a person who had acted in lawful discharge of his duty under Section 43 of the Code of Criminal Procedure.
(9) When the crime is enormous in proportion like making an attempt of murder of the entire family or members of a particular community.
(10) When the victim is innocent, helpless or a person relies upon the trust of relationship and social norms, like a child, helpless woman, a daughter or a niece staying with a father/uncle and is inflicted with the crime by such a trusted person.
(11) When murder is committed for a motive which evidences total depravity and meanness. (12) When there is a cold-blooded murder without provocation.
(13) The crime is committed so brutally that it pricks or shocks not only the judicial conscience but even the conscience of the society.
Mitigating circumstances -- (Criminal test) (1) The manner and circumstances in and under which the offence was committed, for example, extreme mental or emotional disturbance or extreme provocation in contradistinction to all these situations in normal course. (2) The age of the accused is a relevant consideration but not a determinative factor by itself.
(3) The chances of the accused of not indulging in commission of the crime again and the probability of the accused being reformed and rehabilitated. (4) The condition of the accused shows that he was mentally defective and the defect impaired his capacity to appreciate the circumstances of his criminal conduct. (5) The circumstances which, in normal course of life, would render such a behaviour possible and could have the effect of giving rise to mental imbalance in that given situation like persistent harassment or, in fact, leading to such a peak of human behaviour that, in the facts and circumstances of the case, the accused believed that he was morally justified in committing the offence.
(6) Where the court upon proper appreciation of evidence is of the view that the crime was not committed in a preordained manner and that the death resulted in the course of commission of another crime and that there was a possibility of it being construed as consequences to the commission of the primary crime.
(7) Where it is absolutely unsafe to rely upon the testimony of a sole eyewitness though the prosecution has brought home the guilt of the accused.' [Ed. : As observed 12 Death Reference No. 02 of 2023 WITH Cr. Appeal (DB) No.494 of 2023 in Ramnaresh v. State of Chhattisgarh, (2012) 4 SCC 257, pp.
285-86, para 76.] "
This extract is taken from Manoj Pratap Singh v. State of Rajasthan, (2022) 9 SCC 81 : (2022) 3 SCC (Cri) 596 : 2022 SCC OnLine SC 768 at page 165
84. This Court further said : (Shankar Kisanrao Khade case [Shankar Kisanrao Khade v. State of Maharashtra, (2013) 5 SCC 546 : (2013) 3 SCC (Cri) 402] , SCC p. 576, para
52) "52. Aggravating circumstances as pointed out above, of course, are not exhaustive so also the mitigating circumstances. In my considered view, the tests that we have to apply, while awarding death sentence are "crime test", "criminal test" and the "R-R test" and not the "balancing test". To award death sentence, the "crime test"
has to be fully satisfied, that is, 100% and "criminal test"
0%, that is, no mitigating circumstance favouring the accused. If there is any circumstance favouring the accused, like lack of intention to commit the crime, possibility of reformation, young age of the accused, not a menace to the society, no previous track record, etc. the "criminal test" may favour the accused to avoid the capital punishment. Even if both the tests are satisfied, that is, the aggravating circumstances to the fullest extent and no mitigating circumstances favouring the accused, still we have to apply finally the rarest of the rare case test (R-R test). R-R test depends upon the perception of the society that is "society-centric" and not "Judge-centric", that is, whether the society will approve the awarding of death sentence to certain types of crimes or not. While applying that test, the court has to look into variety of factors like society's abhorrence, extreme indignation and antipathy to certain types of crimes like sexual assault and murder of intellectually challenged minor girls, suffering from physical disability, old and infirm women with those disabilities, etc. Examples are only illustrative and not exhaustive. The courts award death sentence since situation demands so, due to constitutional compulsion, reflected by the will of the people and not the will of the Judges."
21. In this case, we find that none of the circumstances are fulfilled to award death penalty to the appellant. Dispute amongst the co-sharers for property and partition is not uncommon. The fights for property and fight to partition property amongst the co-sharers resulting in death cannot be the sole ground to award death penalty. This case is not of a cold blooded murder also.
22. From the facts of the case, it transpires that there was land dispute between brothers. In this case the appellant and his another brother were insisting for their share and the deceased was not paying any heed to their request, which resulted in the appellant committing murder of the deceased. When the witness, P.W.3 tried to forbade, the appellant assaulted her also. His mental condition was so much disturbed that he attempted to 13 Death Reference No. 02 of 2023 WITH Cr. Appeal (DB) No.494 of 2023 commit suicide by hanging himself. Thus, we find that the appellant was under extreme mental pressure which forced him to commit the offence. The way the offence is committed cannot qualify it to come within the ambit of rarest of the rare case.
23. In view of what has been held and discussed above, since there are no circumstances to award death penalty in this case, we convert the death penalty to that of rigorous imprisonment for life.
24. With the aforesaid modification in sentence, converting the death penalty to that of rigorous imprisonment for life, this appeal [Cr. Appeal (DB) No. 494 of 2023] is dismissed.
25. Consequent upon the modification in sentence, as we have converted the death penalty to that of rigorous imprisonment for life, the Death Reference No.02 of 2023 is answered in negative.
26. Pending interlocutory applications, if any, stand disposed of.
27. Let the Trial Court Records be sent back to the Court concerned forthwith along with a copy of this judgment.
(Ananda Sen, J.) (Gautam Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated, the 28th August, 2024 NAFR/Kumar/Cp-03 14 Death Reference No. 02 of 2023 WITH Cr. Appeal (DB) No.494 of 2023