Patna High Court
Manik Mukherjee vs State Of Bihar on 4 April, 2000
Equivalent citations: 2001(49)BLJR1135, 2000CRILJ3661
Author: Prasun Kumar Deb
Bench: Prasun Kumar Deb, Ashok Kumar Prasad
JUDGMENT Prasun Kumar Deb, J.
1. The above-mentioned death reference arises out of the judgment of conviction and sentence of capital punishment awarded by the 1st Additional Sessions Judge, Jamshedpur, in Sessions Trial No. 340/141 of 1998-98. Against the same judgment of conviction and sentence, the above-mentioned criminal appeal has been preferred by the convict appellant-Manik Mukherjee, a local Lawyer of Jamshedpur. The convict Manik Mukherjee stood trial for the charge under Section 302 of the Indian Penal Code along with the co-accused-Ashwani Kumar Panda being charged under Section 115 read with Section 302 of the Indian Penal Code. On trial Manik Mukherjee was found guilty of the charge under Section 302 of the Indian Penal Code for intentionally committing the murder of his wife Swapna Mukherjee, son Jyotirmoy Mukherjee and daughter Indrani Mukherjee alias Rinku and considering the dreadedness and gruesome murder, capital punishment has been awarded as sentence to convict Manik Mukherjee, but the co-accused-Ashwani Kumar Panda was acquitted on benefit of doubt as the charge of abetment against him could not be proved by any cogent and reliable evidence.
2. The prosecution case in brief is that convict Manik Mukherjee was a practising lawyer at Jamshedpur Civil court residing in a house constructed by him at Sankosai Road No. 1 within Mango Police Station (Olidih Out Post) in the town of Jamshedpur in the district of East Singhbhum. He had his native home at Mouza Govarghusi under Patamda Police Station within the same district at some distance from Jamshedpur Town wherein his other brothers were residing along with uncle and others, but the accused-convict Manik Mukherjee constructed the house, as mentioned above, at Mohalla Sankosai, Road No. 1 and was living with his family consisting of his wife and two children, namely, one daughter and a son and he was originally a Junior Advocate of a criminal lawyer Sri Ranjit Sarkar.
3-4. The allegation against the convict accused-Manik Mukherjee is that in the night between 1st and 2nd October, 1997, he got his wife and two children poisoned by making them Aluminium Phosphite to drink and when they became unconscious, then he brutally cut them on their necks by means a Deb and the heads of all the three had been severed from the bodies and then he got the house locked from outside and also grill of the Verandah locked from outside and then left Jamshedpur. Two days after he could be traced out when he either attempted to commit suicide or due to accident had fallen into the river Hoogly while crossing the river through Ferry Boat but he was rescued by the Khalasi and others of that Ferry Boat and he was hospitalised at Howrah General Hospital. The bag belonging to the convict accused-Manik Mukherjee was also found floating in the river Hoogly which was also recovered by the persons who had rescued Manik Mukherjee from the river bed and then the same was deposited at North Port Police Station in Calcutta. After being released from the Hospital, Manik Mukherjee went to North Port Police Station demanding his articles which included cash of Rs. 9,000/- and odd, two bunches of keys, two numbers of blankets, one dhoti, one gamchha and one puja aasan. The Police Officers of North Port Police Station had suspicion as by that time they could also know that an Advocate after killing his wife and children at Jamshedpur had fled away by reading in newspaper. Then they kept the accused-convict-Manik Mukherjee at the police station itself in North Port in Calcutta and then contacted Mango Police Station at Jamshedpur. The Investigating Officer along with others on receipt of information went to North-Port Police Station at Calcutta and there the accused-appellant-Manik Mukherjee along with his articles which were lying in the Malkhana of North Port Police Station had been made over to the investigating agency of this case.
5-6. Manik Mukherjee was arrested and then produced in the Court. The information to the police station at Mango or Olidih Out Post came in the following manner :-
On 5-10-1997 at about 17.25 hours, Hiranmoy Mukherjee (P.W. 1), the brother of the accused-appellant-Manik Mukherjee and who happens to be a Lecturer in the Local College along with Ashwani Kumar Panda, the co-accused, went to Olidih Police Out Post and informed the in-charge of Olidih Outpost that the house of Manik Mukherjee located at Sankosai, Road No. 1 was locked from outside and in the night of 2-10-1997, a sound of scream of some child was heard from inside the house but then unusual calm was maintained inside that house. It was further informed that some blood was found to be rushing outside from the drain of a room of the house of Manik Mukherjee and some foul smell was also coming from inside the house. The in-charge of Olidih Outpost entered the aforesaid information in the police station diary and came to the house of Manik Mukherjee along with other police officers and armed forces and also Hiranmoy Mukherjee, Ashwani Kumar Panda and the informant. The superior officers were also informed over telephone and wireless message. When the In-charge of Olidih Outpost reached near the house of Manik Mukherjee situated at Mohalla Sankosai, Road No. 1, he found that the front grill of the house was locked with Link Lock bearing No. 331. The aforesaid lock was somehow broken in presence of Rasu Pad Mukherjee (P.W. 2), another brother of the accused-appellant-Manik Mukherjee, who is also a practising Advocate at Jamshedpur, Hiranmoy Mukherjee Ashwani Kumar Panda and other neighbors. After entering through grill, the house was also found locked from outside with link lock. The aforesaid lock was also broken and the in-charge along with all, as mentioned above, entered Inside the house. In the southern room of the house, they found three dead bodies lying on the floor of the room and the heads of all the dead bodies were severed from their trunks. Foul smell was coming from all the dead bodies. A blood stained Dab was found lying near the dead bodies. Four steel glasses were also found in that roomlying near the dead bodies. The huge quantity of blood was found spread over the floor of the room. The dead bodies were identified as that of Swapna Mukherjee, wife of Manik Mukherjee, Jyotirmoy Mukherjee son of Manik Mukherjee and Indrani Mukherjee daughter of Manik Mukherjee. The identifiers were P.W. 1 Hiranmoy Mukherjee, P.W. 2 Rasu Pad Mukherjee, P.W. 14 Shamar Kanti Rai, who happened to be the brother-in-law of accused-appellant-Manik Mukherjee and the brother of deceased-Swapna Mukherjee. A diary of seven pages over which it was written as an emblem of "Satya Diary" and other three Court diaries were also recovered from the 1st room of the house.
During the course of preliminary investigation, all the four diaries, four glasses and blood stained Dab were seized in presence of the witnesses. The statement of P.W. 2 Rasu Pad Mukherjee was recorded as fard beyan on 5-10-1997 itself at 18.30 hours in presence of P.W. 1 Hiranmoy Mukherjee and P.W. 14 Shamar Kanti Rai. Such statement recorded at the house of accused-appellant-Manik Mukherjee was in the form of fard beyan on the basis of which a case has been registered on the same very day. In the statement made by Rasu Pad Mukherjee in the fard beyan, it was mentioned that on 5-10-1997 at about 10.30 a.m., while he was at his house, at Govarghusi, Shamar Kanti Rai, the brother-in-law of Manik Mukherjee and Ashwani Kumar Panda of Sankosai, Road No. I, went there and informed that the house of his brother Manik Mukherjee was locked from outside from 2-10-1997. It was further informed that they could gather information from a person who was residing just opposite that house that a sound of scream of a child was heard in the night between 1-10-1997 and 2-10-1997. They suspected some foul play and as such they came to inform Rasu Pad Mukherjee and other family inmates. Then they all came to the place of occurrence and Hiren Moy Mukherjee detected that some blood was found to be rushing out from the drain of a room of the house of Manik Mukherjee. They also smelt foul smell coming from inside the house and they became very much suspicious and as such Hiren Moy Mukherjee and Ashwani Kumar Panda had gone to Olidih out post to inform the police. Then in that statement, it has been elaborately described as to how the locks were broken by the police and they all went inside the house and then Manik Mukherjee was found absent but his wife and two children were found lying killed having their heads severed from the trunks. That fard beyan also includes the seizure of four steel glasses and a blood stained Dab near the dead bodies and also four diaries including three diaries of the Court and one diary with heading as 'Satya Diary' from the table of Manik Mukherjee where he used to work as his office in the first room. The Satya diary was written by Manik Mukherjee on 1 -10-1997 which disclosed that on 6-12-1996, on the occasion of marriage ceremony of the daughter of his senior lawyer Sri Ranjit Sarkar, Manik Mukherjee was invited with his family members. His wife, son and daughter while attended the marriage were called inside but Manik Mukherjee was left outside. A videograph was taken in the marriage and therein his wife's friend Tukla disclosed that the marriage was a love marriage as both the bride and bridegroom had old relation and that the marriage was only a formality and such conversations were taped in the videography as a result, of which Ranjit Sarkar was very much annoyed with Manik Mukherjee as the love marriage of his daughter had been spread. After that incident, Ranjit Sarkar and his close friends, namely, Santanu Sarkar, Dilip Biswas, Ardhendhu Shekhar Ghosh and Amarjeet Kaur were trying to put Manik Mukherjee in some trouble and they spread rumour with the help of Raja Ram Halwai and Arjun Prasad of Sankosai against Manik Mukherjee and his family members. Satya diary further disclosed that Manik Mukherjee was convinced that future of his family was bleak and, as such, he was very much disturbed for last four days and on taking a decision earlier, he had committed the murder of his wife, son and daughter to save them from their future pains. The fard beyan further disclosed that after the marriage of the daughter of Ranjit Sarkar, the accused-appellant-Manik Mukherjee was very much afraid and was spending his days in an unusual manner. It was further mentioned in the fard beyan that from the attending circumstances, it could be found that in the intervening night between 1st and 2nd October, 1997, Manik Mukherjee committed murder of his wife, son and daughter and then fled away after locking the house from outside. It has already been mentioned that Mango P.S. Case No. 221 of 1997 was registered on 5-10-1997 on the basis of the fard beyan of Rasu Pad Mukherjee under Sections 302/201 of the Indian Penal Code.
7. During the course of investigation, Sri Washi Ahmad (P.W. 18) who happened to be the Investigating Officer of the case, had held inquest over the three dead bodies and also seized four diaries including Satya diary, as mentioned above. The seizure lists were made in presence of Mahendra Prasad (P.W. 9) and Tej Narayan Sao (P.W. 10). After inquest, all the three dead bodies were sent to Mahatma Gandhi Medical College Hospital, Jamshedpur for autopsy. The four glasses which were seized from near the dead bodies at the place of occurrence were sent to Regional Forensic Science Laboratory, Ranchi, for chemical examination. On 8-10-1997. the Investigating Officer, Washi Ahmad got information that the accused-appellant-Manik Mukherjee was detained at North-Port Police Station in Calcutta. He went there, took the accused and his belonging kept in the Malkhana of North Port Police Station and then the accused was forwarded to the Court of Chief Judicial Magistrate, Jamshedpur. While holding the post-mortem report, the viscera's of three dead bodies were kept as per instructions by the police and then those were sent to Forensic. Medicine and Toxicology Department, M.G.M. Medical College, Jamshedpur. The viscera report disclosed that the deceased persons were made to drink Aluminium Phosphide, some hours prior to their killing that Aluminium Phosphide is such a poisonous substance that it gets a person who takes it to be unconscious for several hours together. The contents of four glasses also revealed that those contained Aluminium Phosphide. The report of the chemical analysis of viscera and the Forensic report of the glasses were received by the Investigating Officer. During the course of investigation, some evidence was also collected regarding co-accused-Ashwani Kumar Panda that he had abetted accused convict Manik Mukherjee in committing the offence of murder of his wife and two children. Charge sheet was then submitted against both the accused persons and on being committed to sessions, charges were framed against the appellant-Manik Mukherjee under Section 302 of the Indian Penal Code while against Ashwani Kumar Panda under Section 115 of the Indian Penal Code read with Section 302 of the Indian Penal Code.
8. When the charges were read over and explained to the accused persons, they pleaded not guilty. I have already mentioned that no plausible evidence could be found against the co-accused-Ashwani Kumar Panda in connecting him with the crime of abetting and, as such, he had been released/ acquitted on benefit of doubt. When the charge against the accused-appellant-Manik Mukherjee was read over and explained to him, he pleaded not guilty and his plea is of complete denial of his involvement with the crime.
9. For and on behalf of the prosecution, as many as 19 witnesses have been examined. P.W. 1 Hiran Moy Mukherjee, P.W. 2 Rasu Pado Mukherjee and P.W. 3 Narayan Chandra Mukherjee are close relations of the accused-appellant-Manik Mukherjee. P.Ws. 1 and 2 are his own brothers while P.W. 3 is his uncle. P.Ws. 2 and 3 are also the Advocates of Jamshedpur. They became hostile during the cymrse of trial and as such they have been cross-examined by confronting them with their statements made under Section 161 of the Code of Criminal Procedure before the Investigating Officer. P.W. 4 Dhalki was the maid servant at the house of Manik Mukherjee, the accused-appellant. According to her, she came to demand puja bonus from Manik Mukherjee, but she found the house locked and she came to know from the neighbours that perhaps Manik Mukherjee and his family had left for Calcutta. P.W. 5 Aashish Mukherjee is a cousin of accused-appellant-Manik Mukherjee. He has also turned hostile and cross-examined by the prosecution. P.W. 6 (Dr. Y. Nath) and P.W. 7 (Dr. Lalan Choudhary) are the Doctors, who held autopsy over three dead bodies. P.W 8(Pummasi Chauhan), P.W. 9 (Mahendra Prasad). P.W. 10 Tej Narayan Sao) and P.W. 11 (Ram Kumar Sharma) are the seizure witnesses, but they have also turned hostile. P.W. 12 (Rita Devi) is a house wife residing in the neighbourhood of the house of Manik Mukherjee. P.W. 13 Raja Ram is also a neighbour but he has turned hostile. P.W. 14 (Samar Kanti Roy) is the brother-in-law of Manik Mukherjee and practically he came to the house first when he found the house locked. He came from Purulia and then he made searches of Manik Mukherjee and his family members but failed to get any trace and then the subsequent events took place, as already depicted earlier, P.W. 15 (Arjun Prasad) is the owner of a sweet shop in mohalla Sankosai. He neither supported the prosecution case nor supported the defence. P.W. 16 (Herambo Mahto) and P.W.; J7 (Tulsi Charan Sinha) are the Sub-Inspector of Calcutta Police who were attached to North-Port Police Station in Calcutta city at the relevant time. P.W. 18 (Washi Ahmad) is the Investigating Officer of the case and P.W. 19 (Pramod Kumar) is the Assistant Director, Forensic Science Laboratory, Bihar, Patna, Camp at Ranchi and he has proved the forensic report.
10. The defence has not adduced any evidence in the case as his case is a simple denial of prosecution story. After closure of the prosecution evidence, long questionnaire have been put to the accused-appellant-Manik Mukherjee bringing into his notice all the circumstances and materials coming against him during the course of trial. Manik Mukherjee, the accused-appellant, in some of the questions had just denied of his knowledge and that he has not given any specific reply as to what happened to his wife and children. Although the three other Court diaries had been admitted by the accused-appellant in his own hands but he has disowned the handwriting in 'Satya diary.' The learned Additional Sessions Judge, after considering the evidence on record came to the finding that although there is no direct evidence against the accused-appellant but the chain of circumstances proved from the side of the prosecution could prove beyond all reasonable doubt the guilt of the accused-appellant and, as such, convicted and sentenced him as mentioned above. Considering the gruesome murder of all the family members by the accused -appellant in cold blood, the learned Additional Sessions Judge was of the opinion that it is the rarest of rare cases where capital punishment must be awarded as a sentence on the accused-appellant.
11. The whole case rests on the circumstantial evidence alone as there is no direct evidence that the accused-appellant-Manik Mukherjee had killed his wife and two children. In a case of circumstantial evidence, the set up cardinal principle is that the prosecution must prove the chain of circumstances fingering towards the guilt of the offender and circumstances must be of such nature that the same cannot have any other proposition than that of the guilt of the offender. If there is any missing link in such chain of circumstances, then the whole chain becomes delinked and the benefit must go to the offender. Moreover the circumstances must be of such nature that the same should not give an impression that there is strong suspicion about the guilt of the offender rather the same should prove the guilt of the offender as the circumstances, however, strong, the same may be, cannot take the place of proof of guilt. The circumstances should also be of such strong nature that the same finger towards the guilt of the offender alone having no other proposition at all. Keeping the same principle, the circumstances attempted to be proved in the present case are to be considered cautiously and very carefully.
12. In the present case, the circumstances against the accused-appellant-Manik Mukherjee are :-
(i) that he used to reside at Mohalla Sankosai, Road No. 1 in the town of Jamshedpur since 10-12 years prior to the occurrence by constructing his own house and living in that house along with his wife and two children. No other family members from either side i.e. that of Manik Mukherjee or from the side of deceased-Swapna Mukherjee were residing in that house. The native house of the accused-appellant-Manik Mukherjee is at village Gobarghusi where his other brothers, father etc., were residing but Manik Mukherjee was completely separate from them and residing with his own family i.e. wife and two children in his house at Sankosai, Jamshedpur.
(ii) That on 1-10-1997 accused-appellant-Manik Mukherjee was very much present at Jamshedpur. He attended the Court on that date at Jamshedpur and from the morning of 2-10-1997, he was not seen either at his house at Sankosai or at Jamshedpur town.
(iii) The house was locked doubly from outside, one at the door of the house and the other at the grill and the keys of those locks were in possession of Manik Mukherjee when he was recovered from river Hoogly and the bag contained by him included the bunch of keys along with wearing apparels and others.
(iv) That the accused-appellant-Manik Mukherjee left Jamshedpur after the commission of offence towards Calcutta and he fell down in Hoogly river while crossing through ferry from Howrah towards Calcutta city "either he attempted to commit suicide by jumping into the river Hoogly or accidently he fell down in the river," and he was rescued by Khalasies of the ferry and other passengers and the bag in his possession was found floating in the river Hoogly which was also recovered by the rescuers and deposited the same in the North-Port Police Station at Calcutta.
(v) That the accused-appellant-Manik Mukherjee after recovery from the river Hoogly was admitted to Howrah General Hospital and after being discharged from the hospital, he went to North-Port Police Station, Calcutta, for getting back his wearing apparels, bunches of keys and the cash inside that bag when he was detained on suspicion and then made over to the police at Jamshedpur.
(vi) That only the dead bodies found inside the locked house, four steel glasses were found lying having some marks and those on chemical analysis could be found to have contained Alluminium Phosphide, a poisonous medicine for the purpose of making the deceaseds unconscious for several hours and a blood stained Dab was also found lying near the dead bodies by which the heads of three deceased persons had been severed from their trunks. After post-mortem examination of the dead bodies, visceras of the dead bodies were retained and from the Forensic Science Laboratory, after examination of the visceras, it was reported that the deceased persons must have consumed aluminum Phosphide before their death which meant that the accused-appellant-Manik Mukherjee made a cool blooded plan to finish all his family members and, as such, procured Aluminium Phosphide as medicine from market and then made the deceased persons consume it and perhaps there was plan for his committal of suicide also by consuming such poison, but ultimately he did not do so, and in the unconscious position, the three persons who were dear ones of the accused-appellant-Manik Mukherjee were brutally killed.
(vii) That the accused-appellant-Manik Mukherjee after the commission of crime had left his house and Jamshedpur town also by locking the house and keeping the keys with him and those keys could be found to be exactly fitting with the locks when produced before the Court as material exhibits.
(viii) That the motive behind the murder was not that the accused-appellant wanted to kill his family members due to any vengeance against them, rather he was disturbed in his mind for some months ahead of the incident because of some untoward incident in the marriage ceremony of the daughter of his senior colleague Ranjit Sarkar Advocate and the accused-appellant was convinced that a plan was being hatched against him and his family members and, as such, finding no hope of ray of escaping from such conspiracy, he was convinced that he had his family members would be doomed of their future life and as such it reacted in his mind to finish the family members and perhaps also, attempted to finish himself to get rid of any further untowards circumstances. Such mental tension/condition had been expressed by accused-appellant-Manik Mukherjee on the date of incident itself on 1-10-1997 in his diary which was named and styled as "Satya Diary" which was seized from his table of reading and writing from the first room of the house.
(ix) That the conduct of the accused-appellant which is very much relevant in such sort of cases under Section 8 of the Evidence Act when the accused-appellant did not take any care as to what happened to his wife and children and in his reply to the questionnaire put, he simply said that in these matters he has got nothing to say.
13. The learned trial Judge after elaborately considering all the circumstances, as mentioned above, came to the finding that all circumstances have been proved beyond all reasonable doubt and as such they fingered towards the guilt of the accused-appellant alone and none else and hence arrived at the decision of conviction and sentence of capital punishment, as mentioned above.
14. Before going into the discussions as to whether the circumstances have been proved beyond all reasonable doubt or whether there is any missing link in the chain of circumstances, it must first of all be considered whether the circumstances mentioned above if proved can attract the. conviction of the accused-appellant or not. There is chain of circumstances that the accused-appellant was with his family members up to 1-10-1997 and there was none else there who can be suspected of any hands in the commission of the offence. He was not only last seen with the deceased persons but the subsequent circumstances are more relevant when they fingered towards the guilt of the accused-appellant alone. He escaped from the place of occurrence, tried to flee away and perhaps he wanted to commit suicide also by jumping into the river Hoogly but he was rescued and then he went to North Port Police Station to get back his belongings and admittedly those bunches of keys which were within his bag of belongings were the keys of the locks fitted to the house itself. The viscera report showed how the criminal mind of the accused-appellant had acted to solely process the act of killing so that the neighbours may not hear the cries by the victims. Any prudent man, in such circumstances, as mentioned above, if proved, can only finger towards the guilt of the accused-appellant and none else. So it is clear that the accused-appellant, if the circumstances are proved, is the murderer and none else.
15. Now each and every circumstances are to be seen in the aid of the evidence, both oral and documentary, adduced from the side of the prosecution, whether those circumstances could be proved or there were missing links.
16. Regarding the first circumstance that the accused-appellant-Manik Mukherjee was residing with his wife and two children, since murdered has not been denied and it has been admitted by his two brothers Hiranmoy Mukherjee (P.W. 1), Rasupad Mukherjee (P.W. 2) and uncle Narayan Chandra Mukherjee (P.W. 3). No other family members were residing in that house is also admitted. So the first circumstances is practically admitted one and, as such, proved against the accused-appellant-Manik Mukherjee.
17. Regarding second circumstance that on 1-10-1997 Manik Mukherjee was very much present at Jamshedpur and he attended the Court also as he forwarded the cases of that date fixed in his own handwriting and those diaries and the writings thereof in the hands of the accused-appellant has been admitted by him, but he has denied his presence on that date of Jamshedpur. He did not say specifically as to where he was on that date.
18. A practising Advocate if hot attended the Court, there was no scope of forwarding dates of the cases on future dates as per the orders passed in different Courts and when the diary was maintained by the accused-appellant himself in his own hand writing then his presence on that date of Jamshedpur is proved beyond all reasonable doubt and the denial made is only for the purpose of escaping from the clutches of legal inference. In this position, the dictum "man may lie but the documents do not" is very much applicable in the present case. Thus the second circumstance has been invariably proved from the side of the prosecution and practically such circumstances tried to be denied in a later part could not be disproved in any way whatsoever. Such presence of the accused-appellant at his house at Jamshedpur has also been proved by oral evidence of Mostt. Dhalki (P.W. 4) and Mostt. Rita Devi (P.W. 12). Mostt. Dhalki is a maid servant who used to work in the house of the accused-appellant but when she came to demand for Puja bonus, she found the house locked and from the neighbours she could learn that the family had left for Calcutta. P.W. 12 Rita Devi, a neighbour, also stated that the accused-appellant and his family members were present at the house till it was found locked on the next date.
19. Mr. P. P. N. Roy, learned counsel appearing for and on behalf of the accused-appellant has strenuously argued that their deposition cannot be accepted as they did not specifically mention about the dates in their evidence but on perusal of the evidence as a whole, it could be found that although dates were not mentioned by them but their evidence directly speak of presence of accused-appellant-Manik Mukherjee at his house on 1-10-1997 and from the morning of 2-10-1997, he was found missing from the house as the house was found locked. Thus I could find that the second circumstance has also been proved beyond all reasonable doubt and the learned 1st Additional Sessions Judge has rightly arrived at his decision on this circumstance.
20. Regarding third circumstance, there is overwhelming evidence that when the house was found to be locked from outside and P.W. 14 (Shamir Kanti Roy), the brother of the deceased-Swapna Mukherjee, could not find the whereabouts of the family members went to the native place of Manik Mukherjee and informed about the position and circumstances and then the brothers of accused-appellant-Manik Mukherjee came to the place of occurrence and they smelt of foul play and some foul smell was coming out from inside the house. The blood was found soaking out from the drain of a room of the house and then information was lodged with the police. The police came and then the house was unlocked by breaking the locks in presence of the witnesses and then the police entered inside the house and found the three dead bodies lying in the southern room in pool of blood. Attempt was made by pushing some cloth on the opening of the drain so that blood may not come out through the drain, but soaking that piece of cloth, some trail of blood came out from the drain. The locks were seized in presence of the seizure witnesses namely, Mahendra Prasad (P.W. 9) and Tej Narayan Sao (P.W. 10) but they did not support such seizure in their presence with obvious reasons for saving the life of the accused-appellant. But it was admitted that the house was locked at two places, one at the grill and one at the door and that the police officers and others had entered inside the house by breaking those locks and those locks were seized and produced before the trial Court at the time of trial of the case. So this was proved that the offender after committing the offence had made all cautions while fleeing away from the place of occurrence. He had not only locked the house twice from outside but had also put a piece of cloth on the mouth of the drain so that blood may not ooze out through the drain.
21. Now about the keys of those locks, there is evidence to that effect by the two Police Officers from Calcutta police station, namely, P.Ws. 16 and 17 (Herambo Mahto and Tulsi Charan Sinha) to the effect that an unknown person had made over a bag containing bunches of keys, cash amount of Rs. 9,000/- and odd, one Dhoti, one Gamchha and one Pooja Aasan and two blankets stating that those were recovered from the Hoogly river on floating condition when the accused-appellant-Manik Mukherjee was rescued from the Hoogly river and that the bag belonged to Manik Mukherjee. After being released from Howrah General Hospital, Manik Mukherjee had the knowledge that his bag and the personal belongings had been lying with North-Port Police Station and, as such, he came to demand those from North-Port Police Station but the police officials there had doubt, as by that time, they came to know from the newspaper reporting that a heinous crime had been committed by an Advocate of Jamshedpur and naturally the accused-appellant had disclosed his identity as Manik Mukherjee Advocate of Jamshedpur and hence, they detained the accused-appellant with his belongings and informed the police at Jamshedpur and when P.W. 18 Washi Ahmad, the Investigating Officer along with the other police officials reached North-Port Police Station, the accused-appellant was made over to him along with the bag and that the seizure was made regarding the belonging of that bag in presence of Manik Mukherjee by P.W. 18 and those were also produced before the trial Judge during the course of trial and by trial method, the learned Sessions Judge himself could find that the bunch of keys totally fit in with the locks which were seized from the house of the accused-appellant at Mohalla Sankosai, Road No. 1 in the town of Jamshedpur.
22. In this context, Mr. P. P. N. Roy, learned Advocate for the accused-appellant has strongly argued that there is missing link. According to him, the happenings at North-Port Police Station, Calcutta regarding Station Diary entry, about the receipt of the bag of the accused-appellant and then keeping the same in Malkhana and then the accused-appellant-Manik Mukherjee went there, demanded the same and detained there had not been proved by the documentary evidence. It is true that there are some laches from the side of the prosecution when those documents have not been proved although those documents were very much lying on the record itself being brought by P.Ws. 15 and 16. In this respect, out of frustration, the learned trial Judge has commented that it might be the laches on the part of the Additional Public Prosecutor conducting the case or might be a calculated attempt to suppress those by the learned Additional Public Prosecutor to save the life of his own colleague who was practising with him in the same bar. Leaving aside that portion, considering the evidence of P.Ws. 16, 17 and 18 with their lengthy cross-examination, the factual aspect regarding such seizure of the bunch of keys could not be dislodged from the side of the defence by any way whatsoever.
23. On questions being put under Section 313 of the Code of Criminal Procedure, the accused-appellant-Manik Mukherjee admitted that he had gone to North-Port Police Station and the seizure of the cash amount had also been admitted as he had to say that from those amount, time to time, he had been allowed to spend by the Jail authorities. If a part of belongings contained in a bag is admitted then the other part cannot be dislodged simply by denial itself. It has again been submitted by Mr. P. P. N. Roy that North-Port Police Station doubted as by that time they had read from the two newspapers about the incident at Jamshedpur but none of those papers had been produced and practically it could be found that those papers might not be there or the names of the papers had been mistakenly stated by P.Ws. 16 and 17. But the fact remains and that this Court may take judicial notice of it that this incident was published not only in the local newspapers in Bihar but also in All India Newspapers as it had created stir and on two or three occasions and dates, news had been published regarding gruesome murder and also about the attempt of accused-appellant-Manik Mukherjee to commit suicide by jumping into the river Hoogly while crossing the river through ferry. Those bunch of keys can never be in possession of North-Port Police Station unless those were being handed over to that police station by a passenger or somebody else who had helped in rescuing the accused-appellant from river Hoogly. The whole bag had been handed over with all its contents to the police station. The ownership of the bag had not been denied and out of its contents, the cash money recovered had also not been denied rather owned by the appellant-Manik Mukherjee. Can there be any reason to disbelieve P.Ws. 16, 17 and 18 regarding the bunches of keys being recovered and seized on simply being denied by the accused-appellant? In those bunches of keys, there was key of his scooter also. That has not been denied. In that way, even if for the laches on the part of the Additional Public Prosecutor, the documents i.e. the Station Diary entry at the North Port Police Station, Calcutta, could not be brought on the record formally although those were already on the record on the face of it, the oral evidence when not dislodged by lengthy cross-examination cannot be stated having not proved and that there is missing link in this circumstance.
24. Another argument has been placed that it was in the evidence that locks were broken while entering inside the house but while keys were being tried with those locks, then those were found to be fitting. So there is some discrepancy in this respect. There are various ways of breaking of the locks. It cannot be taken for granted that in breaking of the locks, the whole of locks became ineffective forever. The breaking of locks, in general, might have been stated when a portion of the grill might be broken to unlock the gate, the Karaya of the door might also be broken for the purpose of unlocking keeping the locks intact. It is found from the impugned judgment itself that the learned Sessions Judge himself in presence of the accused-appellant, his counsel and the Public Prosecutor, had tried the keys with the locks and found those totally fit in with those Link clocks. Thus, I do not find any force in the streneuous submission of Mr. Roy that there is missing link in proving this circumstance rather I hold that this circumstance has also been proved beyond all reasonable doubt.
25. The fourth and fifth circumstances have practically been dealt with in the previous paragraph. The accused-appellant had been recovered from Hoogly river while he had fallen or attempted to commit suicide while crossing Hoogly river from Howrah to Calcutta through ferry. This position has not been denied from the side of the accused-appellant as he was recovered from river Hoogly by the Khalasies and other passengers. The bag containing personal effects of the accused-appellant including the bunches of keys and cash amount had also been recovered and deposited with the North-Port Police Station has also not been categorically denied from the side of the accused-appellant rather after recovery from Howrah Genreal Hospital, the accused-appellant went to North-Port Police Station for getting possession of his belongings that is the bag. The cash amount found inside the bag has been categorically owned by the accused-appellant in the statement under Section 313 of the Code of Criminal Procedure. The amount has also been utilised on his own admission while in jail custody time to time being permitted by the Jail authorities. Thus these two circumstances practically have been proved on admission from the side of the accused-appellant.
26. Regarding 6th circumstance that the dead bodies were found inside the house of the accused-appellant and that those dead bodies identified by the brothers of the accused appellant including the informant have not been denied. When being questioned, the accused-appellant in his statement under Section 313 of the Code of Criminal Procedure has practically admitted the same because he said that he had no knowledge about the same, P.Ws. 1, 2 and 3 although became hostile in respect of other consequences, but regarding the death of the deceased persons with injuries on their persons had not been denied.
27. Mr. P. P. N. Roy, Advocate, appearing for and on behalf of the accused-appellant has also conceded that he has got nothing to say about what has been found in the postmortem examination of the three dead bodies and that there was homicidal death of all the three deceased persons cannot be denied on the face of it. Regarding chemical examination of the contents in the four steel glasses lying by the side of the dead bodies and the Forensic examination of the three viceras of the deceased persons have also not been denied, The cross-examination of the witnesses in this regard, namely, P.W. 6 Dr. Y. Nath and P.W. 19 Pramod Kumar could not be dislodged of the factum that the deceased persons had been cut to death by a sharp cutting weapon by severing their heads from the trunks and that before death, they must have been administered Aluminium Phosphide for the purpose of making them unconscious. The reasons behind are that the murderer made a plan with cold blood to finish all his family members and perhaps himself also to get rid of the agonies for which he was suffering for few months prior to the incident. The 4th glass also contain the same residues of Aluminium Phosphide which infers that there was an attempt from the side of the accused-appellant also for commission of suicide. The house of the accused-appellant was situated in a thickly populated area and he was aware of the fact that if he makes attempt of killing the deceased persons in their full consciousness, then there would be cries and screams which might have attracted the neighbours and there was possibility of his being caught hold of red-handed and as such they were made unconscious before committing of death by severing three heads from their trunks. After that commission of murder, perhaps the accused-appellant or the murderer had a second thought of survival and as such he got the house locked and then fled away from Jamshedpur itself but his mind was still there for commission of suicide when he tried to jump into the river Hoogly to finish himself. Generally the people crosses the river Hoogly from Howrah Station to Calcutta by Bus, Tram etc., but definitely with an oblique purpose, the accused appellant had chosen ferry to cross Hoogly river and in the middle of the river, he tried to jump but he was rescued. It is the human psychology that every person after getting rid of his mental disturbance craves for his survival and the same psychology appears to have acted in the mind of the accused-appellant also although the theory of suicide could not be proved but there remains a question mark as to the falling of the accused-appellant in the river Hoogly. The status of the accused-appellant should be borne in mind that he is an Advocate and was practising in the criminal side and it cannot be understood by any stretch of imagination that he will just incidentally fall from the ferry. However, we are not much concerned with that incident but the fact remains that the accused appellant had fallen in the river Hoogly and he was rescued by the Khalasi and the passengers of the ferry. There was none in the house at the relevant time of occurrence except the deceased and the accused-appellant and, as such, there was no possibility of anybody else to have access in the house for commission of the offence.
28. Regarding the 7th circumstance, it has already been discussed in the earlier paragraphs as to how the accused-appellant was responsible in locking his doors and flee away with the keys himself. The bunch of keys although being denied by the accused appellant in his statement under Section 313 of the Code of Criminal Procedure that being belonged to him, but as already stated, the evidence of P.Ws. 16, 17 and 18 put the circumstance proved that those keys totally fit in with the locks which proved beyond all reasonable doubt that it was the accused-appellant who after commission of the crime had locked the house and fled away with the keys kept himself.
29. Regarding 8th circumstance, the motive of the accused-appellant for killing the deceased persons has been solely relied on Satya diary which was recovered from the table of the accused-appellant from inside the house. It has already been stated that the accused-appellant had no vengeance for killing his wife and children rather he was mentally disturbed because of the incident and the subsequent events after the marriage ceremony of the daughter of his senior Ranjit Sarkar which had reacted in the mind of the accused-appellant to finish the whole family as he thought that there was no hope of their survival because of the conspiracy being hatched up by Ranjit Sarkar and other Advocates. This Satya diary is in the form of confession being recorded himself by the accused-appellant. The writing of Satya diary, according to the prosecution, is in the hands of the accused appellant but he denied so in his statement under Section 313 of the Code of Criminal Procedure. P.W. 2 Rasu Pad Mukherjee, the brother of the accused-appellant, although in the first information report has admitted that Satya diary was in the hands of the accused-appellant but for obvious reason for saving his brother, he had denied so before the trial Court and even he went to the extent of denying all contents in the first information report also. The other Court diaries which were recovered from the same table are in the hands of the accused-appellant and he has admitted the same in his statement under Section 313 of the Code of Criminal Procedure then the learned trial Court compared the handwritings of other diaries with that of Satya diary and found that all are in the same hands.
30. It is submitted by Mr. P. P. N. Roy that the hand-writing in the Satya diary could be proved conclusively by sending the same to the Hand Writing Expert and when the same has not been done, this circumstance could not be proved beyond all reasonable doubt, according to him. But in the same breath, Mr. Roy has very fairly submitted that the Court is nothing but an expert of experts and if in the bare eyes, the handwritings are found to be in the same hands then the same cannot be questioned but he submitted that for being cocksure and being doubly ensured, let those hand-writings be considered by this Court also. Sitting in the Division Bench, we both compared with the handwritings of other diaries with that of Satya diary and from considering the handwritings from all angle, we came to the firm opinion that Satya diary must be in the handwriting of a person who had written the other diaries. The handwritings of the other diaries are admitted by the accused-appellant of his own hand and consequently the Satya diary is also in the handwriting of the accused-appellant and thus this circumstance has also been proved beyond all reasonable doubt. The whole mental condition of the accused-appellant just before the commission of the crime has been expressed in the Satya diary itself. Thus this circumstance is also proved beyond all reasonable doubt regarding what had in the mind of the accused-appellant while committing the crime of murder of his wife and two children.
31. The last circumstance is the conduct and behaviour of the accused-appellant. The mens rea and the behaviour of the accused are not very relevant when there is direct evidence about the crime but when the crime subsists on circumstantial evidence alone then these two factors have got much relevance. About the mens rea and motive, I have already discussed in the earlier paragraph but regarding the behaviour and conduct of the accused appellant, it may be mentioned that in all the circumstances as proved from the side of the prosecution would show that the behaviourial pattern of the accused-appellant and his conduct at the relevant time just prior to the occurrence and after the occurrence, definitely finger towards his guilt and none else.
32. The accused-appellant is a matured criminal lawyer and perhaps by doing criminal practice for a long time, he has developed criminal mind regarding the commission of crime. If a crime is committed on spur of moment without much pre-meditation then the criminals left various evidence and signs of their involvement with their crime, but here, in the present case, the accused-appellant from the very beginning had taken cautions so that he may not be caught while doing the crime. The deceased persons were being administered poison to make them unconscious so that the crime of murder could be committed without least resistance. So that he may not be caught immediately, before leaving Jamshedpur, he put a piece of cloth on the mouth of the drain so that the blood may not ooze out and he was to some extent successful in such attempt. Moreover, a normal man would definitely make query if something untoward has happened to his near and dear one, but the accused-appellant was totally unconcerned about what had happened to his wife and children. If he would not have killed in consciousness then he could have made allegation against the actual killer while he came to know that his wife and children were killed inside the house and being a criminal lawyer, he knows all the position of criminal law and as to how he would react, but he did not do so which totally go against him to infer his guilt without least suspicion and doubt.
33. Thus from the above discussions, I come to the conclusion that the accused-appellant was responsible for commission of the crime of murder and the circumstances proved have got no missing link and the chain was a complete one to bind the accused-appellant of the crime he committed.
34. Mr. P. P. N. Roy, learned counsel for the accused-appellant has referred to various judgments of the Apex Court and of this Court on adjudication of a criminal case on the basis of circumstantial evidence alone. He has referred to a judgment of mine delivered in a Division Bench in the case of Archi Nawal Kishore Kujur v. State of Bihar 1995 (1) East Cr C 548 wherein the accused-appellant was convicted by the same Presiding Officer as of this case for murder of the wife of the accused who happened to be an I.A.S. Officer. The conviction was awarded but the same has been set aside by this Court holding that the circumstances were not proved fingering towards the guilt of the accused and the accused alone. In that case, the prosecution relied on one angle of the case but the conviction was awarded by making out a third case as the prosecution case did not fit in with the post-mortem report and the opinion of the doctor and it was held by this Court that there was no scope of finding out a third case for arriving at a conviction when in the circumstances and the medical evidence have got glaring discrepancy. That case has got no relevancy with the present case as in the present case, the circumstances are in a chain and there is no missing link in the circumstances proved from the side of the prosecution. The medical evidence, chemical examination and the vicera report had totally corroborated the circumstances proved from the side of the prosecution. There is no third case to be made out. It is true that in a case of circumstantial evidence, if two views could be possible, the view which supports the accused must be taken to grant, the benefit of doubt to the accused but, here, in the present case, the circumstances proved are of such nature that the same has no second view or any possible view besides fingering towards the guilt of the accused appellant alone. The other judgment of the Apex Court relied on by Mr. P. P. N. Roy is in the case of Kansa Behera v. State of Orissa 1987 East Cr C 617 (SC) : 1987 Cri LJ 1857. The reported case i.e. Kansa Behera (supra) was based on the circumstantial evidence of last seen together. In that case, two persons were found to be with the deceased; one of them was having a weapon with him. There was allegation of commission of murder but the said co-accused as has been held by the Apex Court cannot be convicted only on the basis of last seen together. That judgment has got no bearing in the present case. Here not only there is evidence of last seen but there are subsequent circumstances which showed conclusively the involvement of the accused-appellant alone with the crime of murder. Mr. Roy has also relied in the case of Shankerlal Gyarssilal Dixit v. State of Maharashtra AIR 1981 SC 765 regarding appreciation of circumstantial evidence. Falsity of defence plea as has been held by the Apex Court cannot make the prosecution case to be proved. Falsity of defence plea can be considered as an additional circumstance but this alone cannot, be to the advantage of the prosecution case but it remained the bounden duty of the prosecution to prove all chain of circumstances to finger towards the guilt of the accused beyond all reasonable doubt. The question of alternative hypothesis has also been dealt with in the said judgment. In that case also, the circumstances were such that there cannot be any possibility of any other to have entered into the house to commit rape and then kill the deceased. A false plea was taken by the accused in that case and on that falsity of the plea of the accused, practically conviction was arrived at in the lower Court but the Apex Court found that the chain of circumstances connecting the accused with the crime cannot be said to be proved beyond all reasonable shadow of doubt and hence the acquittal was granted. Here, in the present case, there is no other hypothesis regarding the commission of crime except that of involvement of the accused-appellant with the murder and the circumstances had been proved in such able way by the prosecution, there remains no shadow of doubt of holding that it was the accused-appellant alone who had committed the crime.
35. Thus I find that all the circumstances could be proved from the side of the prosecution legally and ably to prove the crime of the accused-appellant beyond all reasonable doubt and I confer and share the same view expressed by the learned trial Judge in convicting the accused-appellant.
36. Now the point comes in as to whether the present case is a rarest of rare case where the accused-appellant can be saddled with capital punishment or not. The accused-appellant was a literate gentlemen in the society doing criminal practice at Jamshedpur Bar. There is not an iota of instance proved from the side of the prosecution that the accused- appellant had any criminal history. Moreover it appears while discussing the question of motive that the accused-appellant had no grudge or vengeance against his wife or children. He did not have any suspicion of infidelity against his wife or about the birth of his children who had already grown up by that time rather his love and affection towards his wife and children were very much there and he did not want that they should have to face the cruel world alone if something untoward happens to them as he became the victim of some conspiracy being hatched by his colleague. It appears that the accused-appellant is of weak built mentality and his backbone was not strong enough to fight the world against odds. He was introvert as is appearing from the wordings of the Satya diary itself. On the incident at the marriage ceremony of Ranjit Sarkar has created a fear psychosis in his mind and consequently some incident as was revealed from Satya diary has depened the fear psychosis in his mind that he may be heckled and with this firm belief in his mind, he started brooding as to how he could face further untowards incident and then he developed this theory of killing all the family members and, in doing so, he applied all his mental aberrations to make the crime complete free from suspicion.
37. It is true that the murder is cold blooded one and on pre-planned hypothesis but that alone in my mind does not attract the case of rarest of rare case for imposing capital punishment in such a case. It is true that it is a cold blooded triple murder but the mind of the accused and the subsequent, action of the accused totally infers that he was disturbed minded with a fear psychosis which has completely demurred all his fine and pleasing normal instincts and made him a cruel murderer. Considering all this aspect, I am of firm opinion that this case does not come within the purview of rarest of rare case for imposing capital punishment and I do convert the same to rigorous imprisonment for life.
38. Thus the Death Reference is answered in the above manner by modifying the capital punishment into that of rigorous imprisonment for life and Criminal Appeal No. 325 of 1999 (R) is dismissed with modification in the sentence aforesaid.
Ashok Kumar Prasad, J.
39. I agree.