State Of West Bengal vs Sujit Dhali And Others
2022 Latest Caselaw 4964 Cal

               IN THE HIGH COURT AT CALCUTTA
                CRIMINAL APPELLATE JURISDICTION
                        APPELLATE SIDE

Present:

The Hon'ble Justice Joymalya Bagchi
               And
The Hon'ble Justice Ananya Bandyopadhyay


                 Death Reference No.1 of 2017


STATE OF WEST BENGAL
                                                  ...APPELLANT
                                 Vs.


SUJIT DHALI AND OTHERS
                                                  ...RESPONDENTS

With

C.R.A. No.97 of 2017

SAMIR MONDAL ...APPELLANT

Vs.

STATE OF WEST BENGAL ...RESPONDENT With

C.R.A. No.117 of 2017

SUJIT DHALI ...APPELLANT

Vs.

STATE OF WEST BENGAL ...RESPONDENT

With

C.R.A. No.140 of 2017

PROVASH DHALI ...APPELLANT

Vs.

STATE OF WEST BENGAL AND OTHERS ...RESPONDENTS

For the Appellant : Mr. Krishnendu Bhattacharya, Adv.

[In CRA 140 of 2017]             Mr. Debdas Khanna, Adv.
                                 Mr. Priyankar Ganguly, Adv.
                                 Ms. Shalini Bairagi, Adv.


For the Appellant              : Mr. Sandipan Ganguly, Sr. Adv.
[In CRA 117 of 2017 &            Mr. Dipanjan Dutt, Adv.
 In CRA 140 of 2017]             Ms. Manaswita Mukherjee, Adv.


For the State                  : Mr. Neguive Ahmed, A.P.P.
                                 Ms. Trina Mitra, Adv.
                                 Ms. Amrita Gaur, Adv.


Heard on                       : 04.07.2022, 08.07.2022, 11.07.2022,
                                 12.07.2022, 13.07.2022


Judgment on                    : 02.08.2022



Joymalya Bagchi, J.:

The death reference and the criminal appeals have arisen out of the

impugned judgment and order dated 08.12.2016, 09.12.2016 and

12.12.2016 passed by learned Additional Sessions Judge, 7th Court,

Barasat, North 24 Parganas in Session Trial No.04(01) 2013 arising out of

Session case No.32(12) 2012 convicting the appellants Provash Dhali, Sujit

Dhali and Samir Mondal for the commission of offences punishable under

sections 449, 120B and 302 IPC in additional to conviction of Provash

Dhali under section 25 of the Arms Act and sentencing them to suffer

rigorous imprisonment for 10 years and pay a fine of Rs.10,000/- each, in

default, to suffer rigorous imprisonment for one year for the offence

punishable under section 449 IPC, rigorous imprisonment for life and pay

a fine of Rs.10,000/- each, in default, to suffer rigorous imprisonment for

one year for the offence punishable under section 120B IPC, sentence of

death as well as fine of Rs.50,000/- each, in default, to suffer rigorous

imprisonment for three years for the offence punishable under section 302

IPC and to suffer rigorous imprisonment for five years and to pay a fine of

Rs.5,000/-, in default, to suffer rigorous imprisonment for one year for the

offence punishable under section 25 of the Arms Act so far as Provash

Dhali is concerned. Fine amount, if realised, was directed to be awarded to

the minor sons of the deceased Avijit Biswas and Biswajit Biswas, P.Ws. 2

and 3 respectively.

Prosecution case:-

Prosecution case, as alleged against the appellants is to the effect on

10.04.2012 Benoy Biswas along with his wife Sheuli Biswas and two minor

children Avijit Biswas and Biswajit Biswas had retired to bed after dinner.

Amrita Biswas and Kagoti Biswas, parents of Benoy Biswas were also

asleep in an adjoining room. Around 10.30 p.m. the appellants and others

entered the room and started assaulting Benoy. Sheuli Biswas (P.W. 1)

tried to save her husband. She requested them not to kill her husband.

Provash Dhali fired at her right hand. Her husband begged for mercy.

Provash Dhali fired at the chest of Benoy Biswas. Hearing the noise,

Benoy's sons woke up. His parents also came to the spot. Provash Dhali

threw down Kagoti Biswas, mother of Benoy Biswas, and fired on her

cheek. Kagoti suffered injury and died at the spot. Provash Dhali also threw

down Amrita, father of Benoy, and fired at his cheek. Thereafter, the

appellants dragged Benoy towards the field. Sheuli Biswas and her sons

followed and saw the appellants mercilessly stab Benoy and fire at him.

Sheuli and her sons fled from the spot and went to Adivasi Para. On the

next day Sheuli and her father-in-law were removed to hospital. Her father-

in-law was declared died at the hospital. Sheuli made statement before

A.S.I. Biswajit Patra (P.W. 8), a police officer attached to Barasat Police

Station. Her statement was reduced into writing and treated as FIR in the

case. She was shifted to R.G Kar Medical College and Hospital and was

finally discharged on 20.04.2012.

In the meantime, pursuant to a telephonic intimation received in the

morning of 11.04.2012, P.W. 36, I.O., went to the place of occurrence.

Another police officer S.I. Sushil Mallick (P.W. 10) conducted inquest over

the bodies of Benoy Biswas and Kagoti Biswas resulting in registration of

Barasat P.S. U.D. Case No. 154/2012 and 155/2012 respectively. Inquest

over the dead body of Amrita Biswas was conducted by S.I. Mantu Mondal

being U.D. Case No. 153/2012 dated 04.11.2012. At the place of

occurrence P.W. 36 received information that statement of Sheuli Biswas

recorded by P.W. 8, Biswajit Patra, has been treated as FIR. He prepared

sketch maps of the two places of occurrence - one where the body of Benoy

Biswas was lying and the house of Benoy Biswas in whose verandah dead

body of Kagoti Biswas was lying. He seized cartridges and ammunitions

from the first place of occurrence and blood from the verandah of Benoy

Biswas along with broken door from the room of Benoy. Subsequently, he

seized two bullet heads from the verandah on 20.4.2012. He recorded

statement of witnesses including that of Avijit Biswas and Biswajit Biswas,

sons of Benoy. Their statements were also recorded by the Magistrate. Post-

mortem was conducted over the bodies of Benoy, Amrita and Kagoti by

P.W. 24, Dr. Supriti Ghoroi. P.W. 24 found 27 injuries on the body of

Benoy Biswas. On the body of Kagoti Biswas, he found eight injuries

including extensive subdural haemorrhage over both cerebral hemisphere

and fracture of both cornua of hyoid bone and thyroid cartilage. With

regard to Amrita, he noted eight injuries including heamatoma and

extentive subdural haemorrhage over both cerebral hemisphere and

fracture of right cornua of hyoid bone. He opined death was due to effects

of injuries, ante-mortem and homicidal in nature. Pursuant to the

disclosure statement of Goutam Dhali, he recovered arms and

ammunitions in presence of Sukumar Ghosh and Md. Hasanur Zaman,

P.Ws 29 and 19 respectively. Pursuant to the disclosure statement of co-

accused Manindranath Adhikary, arms and ammunitions were recovered in

presence of Bidhan Biswas and Md. Hasanur Zaman, P.Ws. 17 and 19

respectively. He video recorded the confessional statement of Provash

Dhali. Subsequently, he submitted charge-sheet against appellants and

one Manindranath Adhikary. Upon receipt of ballistic report and FSL

report, supplementary charge-sheet was submitted. Further supplementary

charge-sheet was submitted on receipt of sanction under the Arms Act.

Proceedings before the trial Court:-

Pursuant to the submission of charge-sheet, the case was committed

to the Court of Sessions and transferred to the Court of Additional Sessions

Judge, 7th Court, Barasat for trial and disposal.

Charges were framed against the appellants and one Manindranath

Adhikary under section 302, 449, 120B IPC and under sections 25/27 of

the Arms Act. Appellants pleaded not guilty and claimed to be tried.

In the course of trial, prosecution examined 36 witnesses and

exhibited a number of documents. Defence of the appellants was one of

innocence and false implication.

In conclusion of trial, trial Judge by impugned judgment convicted

the appellants and sentenced them to death for committing murder of

Benoy Biswas, Amrita Biswas and Kagoti Biswas.

Appeals and Reference before this Court:-

This has given rise to the present death reference for confirmation of

the death sentences imposed by the trial Court. Appellants have also filed

appeals against their conviction and sentence. Death reference and the

appeals have been heard analogously.

Prosecution Evidence:-

P.W.1, Sheuli Biswas, wife of Benoy Biswas and her two sons Avijit

Biswas, P.W. 2 and Biswajit Biswas, P.W. 3 are the eye-witnesses.

P.W. 1 deposed on 10.04.2012 she and her husband went to sleep at

night after taking meal. Her two sons were also sleeping with them. At that

time appellants and others came to their residence and called her husband.

Her husband opened the door. Thereupon, the appellants entered the room

and assaulted her husband. They tried to drag him towards the door. She

tried to save her husband but Provash Dhali kicked her. She requested the

appellants not to kill her husband. Thereupon, Provash Dhali fired at her

right hand. Benoy begged for mercy. Provash Dhali fired at the chest of her

husband. Hearing her alarm, her two sons woke up and started shouting.

Her parents in law came to save her husband. Provash threw down her

mother-in-law and fired at her cheek. Her mother-in-law sustained injury

and died at the spot. Provash also threw down her father-in-law and fired

at the cheek. This occurred in the verandah of their house. Thereafter, the

appellants dragged her husband towards the field and shouted "Kopa, guli

kar". P.W. 1 and her sons followed them and saw the appellants stab and

fire at her husband. He fell down. P.W. 1 and her elder son took shelter in a

nearby house. On the next day she and her father-in-law were taken to

Barasat Hospital in an ambulance. She narrated the incident to

Superintendent of hospital in presence of police. Her statement was

reduced into writing. She put her LTI. Thereafter, she was shifted to R.G.

Kar Medical College and Hospital. She remained in the hospital till

20.04.2012. She deposed there was enmity between the appellants and her

husband. Her husband and father-in-law had sold land for a sum of

Rs.1,30,000/-. Appellants demanded money which they refused. A girl

residing in the locality had been married. Appellants protested against the

marriage. Her husband had raised objection to the conduct of the

appellants. She stated the miscreants were carrying torches and she could

see them in the torch light. She was cross-examined at length. She denied

the suggestion she had implicated one Pradip Biswas in the murder.

P.W. 2, Avijit Biswas, was the younger son of the couple. He was 10

years old at the time of occurrence. Upon testing his competence, the Court

recorded his deposition. He substantially corroborated his mother's

version. He further stated the appellants had stabbed his father with

Bhojali and had fired at him. Thereafter, he and his mother fled to Adivasi

Para. He made statement before Magistrate.

P.W. 3, Biswajit Biswas, is the elder son of the couple. He was 13

years old at the time of occurrence. He also corroborated the deposition of

his mother, P.W. 1 and younger brother, P.W. 2 with regard to the incident.

He stated Provash Dhali and Swapan had shot at his father and

grandfather. Samir Mondal and Swapan Mondal were carrying Bhojalis.

Sujit Dhali, Goutam Dhali and Provash Mondal had pistols with them. He

made statement before Magistrate. In cross-examination he stated he had

gone to the house of Smritikana Adhikary, P.W. 28 on the next day.

P.W. 4, Rabindra Nath Majumdar, is a neighbor of Benoy. He

deposed at 10/10.30 p.m. on 10.04.2012 he heard sound of firing. He

came out from his house. He saw the appellants along with others. Provash

kicked on the door and hurled abuses on him. They were drunk and

carrying machines like pistol, bombs, etc. On the next day he found Benoy

and his parents were dead.

P.W. 5, Sambhunath Ghosh, is a hearsay witness. He stated there

was enmity between the appellants and deceased Benoy over brokery of

land. He signed on the inquest report of Amrita Biswas.

Similarly P.W. 6, Mukul Ch. Biswas, is another signatory to the

inquest of Amrita Biswas.

P.W. 8, Biswajit Patra, is an ASI of Police who was attached to

Barasat P.S. On instruction from I.C., he proceeded to Barasat Hospital

and in presence of Dr. Manas Chaki he recorded the statement of P.W. 1

(Exhibit 4). P.W. 1 put LTI on her statement. Dr. Chaki put a certificate at

the end of the statement. He handed over the statement to the duty officer.

P.W. 9, Lakshman Tripathy, the duty officer received the statement

and registered Barasat P.S. Case No. 654 dated 11.04.2012 under sections

449/302/34/120B IPC against the appellants.

P.W. 10, S.I. Sushil Mallick, was posted at Barasat P.S. He held

inquest over the bodies of Kagoti Biswas (Exhibit 6) and Benoy Biswas

(Exhibit 9). He forwarded their dead bodies for post-mortem examination.

After post-mortem he seized the wearing apparels of Kagoti produced by

constable Dipak Kr. Nath. He also proved the inquest report prepared by

S.I. Mantu Mondal in respect of the dead body of Amrita Biswas at Barasat

Sadar Hospital (Exhibit 14). He deposed blood stained wearing apparels

were seized by I.O. from his possession.

P.W. 11, Azad Hossain, is a neighbor of Benoy. He signed on the

inquest report of Benoy Biswas. He deposed sons of Benoy informed him

about the incident.

P.W. 13, Krishna Chowdhury, is also a neighbour. He witnessed the

seizure of empty cartridge and bullets from the place of occurrence where

the body of Benoy was recovered. He identified the seized articles in Court.

He deposed a Sitala Puja was being held in the neighbourhood on the night

of occurrence.

P.W. 14, Jiten Patel, was a signatory to the seizure list prepared in

connection with seizure of cartridge, bullets and blood stained earth from

the place of occurrence where the body of Benoy was recovered. He also

witnessed recovery of blood from the verandah and broken door from the

house of Benoy. He also spoke of Sitala Puja in the locality on the night of

occurrence. He deposed regarding dispute between Benoy and appellants

over brokery of land.

P.W. 15, Bapi Bala, another neighbour, is a post-occurrence witness.

He has spoken of motive to commit crime, that is, dispute over brokery of

land.

P.W. 17, Bidhan Biswas, is the elder brother of Benoy Biswas. He

arrived at the spot on the next day and took his father Amrita Biswas to the

hospital. He deposed P.W. 1 had narrated the incident to him on the way to

hospital. He witnessed the seizure of Bhojali on the showing statement of

Samir Mondal. He also witnessed recovery of pipegun and ammunitions on

the showing of Manindranath Adhikary. He identified the Bhojali, fire arms

and ammunitions in Court.

P.W. 18, Nityananda Mondal, is the maternal uncle of Benoy Biswas.

He is a witness to the seizure of two bullet heads from the verandah of the

house of Benoy by I.O. on 20.04.2012.

P.W. 19, Hashanuzzaman, deposed regarding recovery of fire arms

and ammunitions on the showing of Goutam Dhali. He deposed Goutam

Dhali brought out two big fire arms (Mat. Exhibit XI and XII), three small

fire arms (Mat. Exhibit XIII, XIV and XV) and 16 round of ammunitions

(MAT Exhibit XVI). He was also a witness to the recovery of pipe gun and

ammunition from co-accused Manindranath Adhikary.

P.Ws. 20, Ratan Kr. Bag, P.W. 22, Majhaul Biswas and P.W. 32,

Pradip Kr. Naskar being constables attached to Aminpur Investigation

Centre, seized compact discs prepared by P.W. 35 regarding videography of

confession of Provash Dhali.

P.W. 21, Sikha Naskar, is the sister of Benoy Biswas. She is a post-

occurrence witness.

P.W. 25, Khirode Bairagi, is the signatory to the inquest report of

Benoy Biswas.

P.W. 26, Ajit Mondal, is a neighbour of Benoy Biswas. He is a witness

to the recovery of empty cartridge, bullet head, blood stained soil from

place of occurrence where the body of Benoy was found as well as seizure

of broken door from Benoy's residence.

P.W. 27, Sumit Kr. Biswas, is a constable of Aminpur Investigation

Centre. He is signatory to the seizure list in connection with recovery of

Bhojali on the showing of Samir Mondal.

P.W. 28, Smritikana Adhikary, was the panchayat member of the

locality. She stated she heard from one of the sons of Benoy Biswas that

his father and grand-parents have been murdered. The said child could not

disclose names of the accused persons. She was a witness to recovery of

bullet heads from the verandah of Benoy on 20.04.2012.

P.W. 29, Sukumar Ghosh, though admitting his signature on the

seizure list (Exhibit 22) relating to recovery of arms and ammunitions on

the showing of Goutam Dhali, did not support the prosecution case. He

was declared hostile.

P.W. 33, Md. Ariful Islam, prepared CDs and photographs from

memory card produced by I.O. regarding videography made by him at the

place of occurrence.

P.W. 35, Indrajit Saha, prepared CDs with regard to the videography

of the statement made by Provash Dhali to I.O.

Medical witnesses in the instant case are P.Ws. 23 and 24.

P.W. 23, Dr. Nirmal Kr. Giri, is the medical officer attached to R.G.

Kar Medical College and Hospital. He deposed he prepared the medical

report of Sheuli Biswas (Exhibit 25) at the time of admission. As per

statement of patient party, he recorded the history of injury as bullet injury

by Sujit Mondal, Goutam Dhali, Provash Dhali, Swapan Mondal and

others.

P.W. 24, Dr. Supriti Ghoroi, is the post-mortem doctor. He held post-

mortem over the dead bodies of Benoy, Amrita and Kagoti. He found 27

wounds on Benoy out of which 10 were incised chop wounds and 7 were

incised wounds. He also noted fracture and dislocation of C5, C6 vertebrae.

He opined death was due to effects of injuries, ante-mortem and homicidal

in nature. He stated that MAT Exhibit V (Bhojali) may be used to cause the

aforesaid injuries. He proved the post-mortem report (Exhibit 27).

He found 9 injuries on the body of Kagoti Biswas. He noted abrasions

and bruises on the right side of face and right eye, bruises on left and right

orbital area, haematoma on right fronto parieto temporal region of scalp,

extensive subdural haemorrhage over both cerebral hemispheres and

bruises on anterior aspect of neck with fracture of both cornua of hyoid

bone and thyroid cartilage. Fracture showed extensive extravasation of

blood around surrounding tissues. He opined death was due to the

aforesaid injuries, ante-mortem and homicidal in nature. He proved the

post-mortem report (Exhibit 28).

On Amrita, he found 8 injuries including bruises on right lateral

aspect of upper part of neck along with fracture of right cornua of hyoid

bone, haematoma on left frontal region of scalp and extensive subdural

haemorrhage with blood clots over both cerebral hemispheres. Fractures

site showed extravasion of blood in the surrounding tissues. He opined

death was due to effect of injuries, ante-mortem and homicidal in nature.

He proved the injury report (Exhibit 29).

P.W. 30, Ardhendu Senngupta, is the ballistic expert. He deposed he

is a Scientific officer in the Ballistic Division, Forensic Science Laboratory,

Government of West Bengal. He received six packets marked as A, B, C, D,

E and G, three envelopes marked as A(i), F, H and five card board cases

containing paper covers marked as a, l, (n+o), and k in sealed condition. He

identified the fire arms which had been marked as A, B, C, G D and E in

Court. He identified the ammunitions marked as A(i), F, H in Court. He

examined fire arms as well as the ammunitions. Remaining exhibits were

sent to Biology Division for examination. He opined as follows:-

"1) each of the 5 fire arms Exbt A, C, D, E, G was in working order;

2) the revolver Exbt -B was in working order;

3) each of 6 fire arms Exbt -A, B, C, D, E and G was fired previously;

4) the empty fired case, Exbt-a was fired through the pistol Exbt -a;

5) the fired bullet exbt-o was fired through the pistol Exbit-a;

6) the fired bullet, Exbt-n was fired through the pistol, Exbt-c;

7) the ammunition, Exbt-F and H were live;

8) the ammunition, Exbt-A he was not live;

The fire arms i.e. Exbt-C, D, E and G and the ammunition, Exbt- F and H were dangerous for the human life, if fired through in cobination amongst them. The auto pistol Exbt-A was also dangerous for human life if fired through with a suitable ammunition."

He proved his report Exhibit 30.

P.W. 31, Dr. Mrs. Shipra Roy, is the Assistant Director, Biology

Division, State Forensic Science Laboratory. She deposed she received four

card board boxes marked as k, l, m and (n+o) from Ballistic Division. After

examination she found blood in items k, l, m. (n+o) being bullet heads. To

determine origin and group of blood, the items were forwarded to serologist.

She proved her report (Exhibit 31). Report of serologist stated that the

origin and blood group could not be detected as they had disintegrated.

P.W. 34, Arabinda Chatterjee, is the Dealing Assistant to the office of

District Magistrate, North 24 Paraganas. He proved the sanction order

marked as Exhibit 37.

P.W. 36, Nandan Mondal, is the investigating officer of the case. He

was in-charge of Aminpur Investigation Centre. He deposed at 6.00 a.m. he

got telephonic message regarding murder of two persons by gunshot injury

at Noapara Paschimpara. Upon instruction of I.C. Barasat P.S., he along

with force went to the place of occurrence. S.I. Sushil Mallick (P.W. 10) held

inquest over the dead bodies of Benoy and Kagoti. Due to commotion in the

locality there was delay in holding inquest. He received information Amrita

Biswas had died at the hospital. He sent police personnel to Barasat

Hospital. Around 01.00 p.m. he received statement of Sheuli Biswas which

was treated as FIR. He went through the FIR. He prepared rough sketch

map of the two places of occurrence. He proved the sketch maps of the

places of occurrence (Exhibit 40 and 40/a). He prepared a detailed sketch

map of the house of Benoy Biswas (Exhibit 41). He seized empty cartridge,

two live catridges, one live ammunition and blood stained earth from the

land of Krishna Ghosh where the body of Benoy Biswas was found under a

seizure list, marked as Exhibit 18. He also seized blood from the verandah

and a broken door from the room of Benoy under seizure list, marked as

Exhibit 19. He went to Barasat Hospital but found Sheuli Biswas had been

shifted to R.G. Kar Medical College and Hospital for better treatment. He

returned to place of occurrence and examined witnesses. He collected

Surathal reports, post-mortem reports and bed head ticket of Sheuli

Biswas, marked as Exhibit 42. He seized the wearing apparels of deceased

Amrita Biswas and Kagoti Biswas. He examined two sons of Benoy. Their

statements were recorded before Magistrate. On 20.4.2012 he seized two

bullet heads from the house of Benoy, marked as Exhibit 21. He took

photographs as well as videography of the place of occurrence where bodies

of Benoy and Kagoti were lying. He seized 10 CDs with regard to the said

videography and photography. On 16.09.2012 Sujit Dhali surrendered

before Magistrate. He interrogated Sujit Dhali and arrested Samir Mondal

on 24.09.2012. Samir Mondal made disclosure statement on 29.09.2012

(Exhibit 15). On the basis of his disclosure statement Samir Mondal was

taken to his house. Samir brought out a Bhojali from the house which was

seized under a seizure list (Exhibit 20). He identified the Bhojali in Court.

On 25.09.2012 he arrested Goutam Dhali. Goutam Dhali made disclosure

statement on 01.12.2012 (Exhibit 54). Pursuant to disclosure statement

Goutam Dhali brought out five pieces of different types of fire arms and

ammunitions from a bush on the back side of his house in presence of

witnesses. The arms and ammunitions were seized under seizure list

(Exhibit 22). On the same day, Manindranath Adhikary was arrested. He

made a disclosure statement marked as Exhibit 57. On his showing

improvised pipegun and ammunition were recovered under a seizure list

marked as Exhibit 23. Subsequently, Provash Dhali was arrested at a place

called Panchmile at Alipurdwar, District Jalpaiguri. He was produced

before jurisdictional Court on 09.11.2012. He made statement which was

videographed and CDs were prepared. He proved the CDs in Court. He

found Provash Dhali had criminal antecedents and had been convicted and

sentenced to seven years imprisonment. He submitted charge-sheet. On

receipt of FSL report, he submitted supplementary charge-sheet. Another

charge-sheet was filed after the receipt of sanction order.

Arguments at the Bar:-

Mr. Bhattacharya for Provash Dhali has assailed the credibility of the

prosecution case on various grounds. He contended the ocular evidence of

eye-witnesses, P.Ws. 1, 2 and 3 is wholly contradicted by medical evidence.

These witnesses unequivocally stated the appellants had fired at the chest

of Benoy and on the face of Amrita and Kagoti. But post-mortem doctor,

P.W. 24, did not find gunshot injury on any of the victims. This wholly

discredits the eye-witnesses with regard to the manner in which the

incident occurred. Conduct of the eye-witnesses also throws serious doubt

with regard to their credibility. Although the incident occurred in the night

of 10.04.2012, none of the witnesses came out with the names of the

appellants till P.W. 1 was interrogated at the Barasat Hospital around

11.15 a.m. on 11.04.2012. P.W. 28 stated one of the sons of Benoy could

not give out the names of the assailants to her. He submitted incident

occurred on a dark night and there was no electricity. Source of light is

stated to be torchlight carried by the appellants. This fact is significantly

absent in the FIR or earlier statements of the witnesses. No torch light was

also recovered. Vital witnesses necessary for unfolding of the prosecution

case were not examined. Dilip Biswas who took P.W. 1 to hospital has not

been examined. Dr. Manas Chaki who was present when P.W. 1 made

statement was also not examined. S.I. Mantu Mondal who held inquest

over the body of Amrita was also not examined. Neighbours of the victim,

namely, Krishnapada Ghosh, Subrata Majumder were not examined.

Provash Adhikary who brought P.W. 1 at R.G. Kar Medical College and

Hospital and signed injury report has also not been examined. It is also

argued role of one Pradip Ghosh (who was a suspect and had been arrested

during investigation) has been suppressed. His role in the crime was not

properly investigated and he was discharged. MAT Exhibit VIII (Bhojali)

seized pursuant to disclosure statement of Samir Mondal has been

described as an axe in the seizure list (Exhibit 20). The said article had not

been sent for FSL examination. Recoveries pursuant to the leading

statement of Goutam Dhali and co-accused Manindranath Adhikary are

also suspect. P.W. 29 (independent witness to recovery of fire arms from

Goutam Dhali) did not support the prosecution case.

Mr. Ganguly, Senior advocate, for the appellants Samir Mondal and

Sujit Dhali submitted that the charge in the instant case is defective. It is

stated that the murder took place in the house of Sheuli Biswas which is

incorrect. No overt act is attributed to Samir and Sujit. Appellants have not

been charged under section 34 of the IPC. No evidence of conspiracy is also

forthcoming. No gunshot injury was found on the bodies of the deceased as

per post-mortem doctor, P.W. 24. This contradicts the ocular version of

P.Ws. 1, 2 and 3 rendering the prosecution case vulnerable. No conviction

has also been recorded under section 27 of the Arms Act. Conduct of the

eye-witnesses is also unnatural. P.Ws. 2 and 3 did not try to save their

father. They did not suffer any injury during the incident. P.W. 1 stated

deceased Benoy opened the door and the appellants entered the room. If

that is true, it is unclear how the door of the room was broken. No blood

stains were found inside the room of Benoy. P.W. 4 did not disclose the

names of the appellants to P.W. 36 when the latter arrived at the place of

occurrence.

Both the Counsels submitted the conviction is liable to be set aside

and the prosecution case, even if believed, does not have merit in position

of death sentence.

On the other hand, Mr. Neguive Ahmed with Ms. Trina Mitra argued

presence of P.Ws. 1, 2 and 3 at the place of occurrence is most natural. In

addition to firing they witnessed Benoy being stabbed by the appellants.

Bhojali (MAT Exhibit V) was recovered on the showing of Samir Mondal.

P.W. 24 found 27 injuries on the body of Benoy. Most of the injuries were

incised wounds which could have been caused by the seized Bhojali (MAT

Exhibit V). Prosecution witnesses also deposed Amrita and Kagoti were

pushed down and fired. Due to man-handling and pushing they fell on the

ground and suffered extensive haemorrhage in the head and fracture of the

hyoid bone as noted by post-mortem doctor. Medical evidence, therefore,

does not wholly discredit the ocular version rendering the prosecution case

vulnerable. Out of fear, P.W. 1 and her sons ran away from the spot and

went to Adivasi para. Due to fear of reprisal by the appellants who had

unleashed a reign of terror, they remained mum. On the next day, P.W. 1

was admitted in hospital where she divulged the name of the appellants in

presence of police. There is no delay in disclosure of the names of the

appellants. Appellants were well-known to the witnesses. In fact, Sujit was

a next door neighbour. Appellants had carried torches and the witnesses

had seen the appellants in the torch light. Hence, identification of the

appellants cannot be doubted. Recoveries on the showing of Samir Mondal,

Goutam Dhali and co-accused Manindranath Adhikary have been proved

beyond doubt. Ballistic and FSL report also support the prosecution case.

Provash Dhali has criminal antecedents and a prior conviction. All the

appellants had unleashed terror in the locality and killed three persons

including a septuagenarian. Hence, conviction ought to be upheld and the

sentence of death confirmed.

Whether charge is defective:-

Mr. Ganguly for Samir Mondal and Sujit Dhali argued that place of

occurrence in the charge has been described as house of Sheuli Biswas.

Body of Benoy Biswas was found on the land of Krishnapada Ghosh.

Hence, charge is defective. I find little substance in the argument. Evidence

on record shows the appellants had barged into the room of Benoy and had

assaulted him and fired at his chest. Thereafter, they dragged him to the

field and stabbed him to death. Appellants were fully aware of the

prosecution case regarding the manner and circumstances in which the

offence was committed. Reference to the room of Sheuli Biswas in the

charge, therefore, has in no way misdirected them in their defence or

occasioned failure of justice.

Whether the eye-witnesses P.Ws. 1, 2 and 3 are credible?

P.Ws. 1, 2 and 3 are the wife and sons of Benoy. They were present

at the residence when the incident occurred. P.W. 1 also suffered injury

and was hospitalised.

Their versions have been severely criticized on various scores which

are set out and dealt with in seriatim:-

(i) Variation between ocular and medical evidence:-

All the witnesses have stated in unison that Provash Dhali fired at

the chest of Benoy Biswas. They also fired at Amrita and Kagoti. P.W. 1

claimed she suffered gunshot injury. Post-mortem doctor, P.W. 24 did not

find any gunshot injury on the bodies of the deceased. Notings in Exhibit

42 (admission register at Barasat District Hospital) shows the medical

officer opined injury on Sheuli did not have the classical appearance of

gunshot injury.

I have considered the aforesaid issue in the light of the evidence on

record. Apart from the gunshot injury, P.Ws. 1, 2 and 3 stated Benoy was

stabbed repeatedly. P.W. 24 found large number of incised wounds on the

body of Benoy. He also deposed such wounds could have been caused by

the seized Bhojali (Mat Exhibit V) which was shown to him in Court. Hence,

it cannot be said that the medical evidence completely rules out the ocular

versions of P.Ws. 1, 2 and 3.

Learned Lawyers for the appellants strongly criticized the reasoning

given by the trial Judge to the effect that the stab wounds had obliterated

the gunshot injuries. From the evidence on record it appears that the

appellants being variously armed have rushed into the room of Benoy. They

fired and assaulted Benoy and his parents Kagoti and Amrita who rushed

to save him. His wife Sheulli (P.W. 1) also suffered injuries. In the melee,

gunshots were fired. It is possible P.W. 1 presumed that the shots had hit

the victims though they may have missed their targets. Though no gunshot

injuries were found, it is undeniable Benoy had been stabbed a number of

times by the appellants and the post-mortem doctor found large number of

incised wounds on vital parts of his body. With regard to Kagoti and

Amrita, P.Ws. 1, 2 and 3 stated they were pushed down and fired at the

cheek. Post-mortem doctor found extensive haemorrhage and subdural

haematoma beneath the scalp of both the victims. He also found bruise

marks on the neck with fracture of hyoid bone. Amrita was a 77 years old

man while Kagoti was a helpless lady who had been violently pushed down

on the floor by the appellants. As a result of such brutal attack, they

suffered severe head injuries and fracture of hyoid bone resulting in their

death. Absence of gunshot injury in the post-mortem report, therefore, does

not wholly improbabilise the versions of the eye-witnesses with regard to

the other forms of assault vis-à-vis the injuries noted by the post-mortem

doctor. It is trite law evidence of eye-witnesses stands on a higher pedestal

than the medical evidence (see Ram Swaroop vs. State of Rajasthan1).

Only when medical evidence wholly rules out the ocular version would the

dichotomy strike at the root of the prosecution case rendering it

improbable. In the present case presence of P.Ws. 1, 2 and 3 at the place of

2008 Cri. L.J. 2259 (paras 8 and 9)

occurrence is undeniable. P.W. 1 is the wife and P.Ws. 2 and 3 are the

minor sons of Benoy. They were sleeping with Benoy in the room when the

incident occurred. In the factual matrix of the case, absence of gunshot

injuries per se does not improbabilise their presence at the place of

occurrence or their entire evidence regarding the nature of assault on the

deceased.

The cases cited by the appellants are inapposite. In Jagga Singh

And Another vs. State of Punjab 2 none of the witnesses had seen the

assault. They merely heard gunshot but only lacerated wounds were found

on the deceased. In the present case, all the witnesses stated that Benoy

had been stabbed by the appellants and incised wounds were found on his

body. Similarly, they stated Kagoti and Amrita were violently pushed down

on the ground resulting in severe head injuries and fracture of hyoid bone.

In Dinesh And Another vs. State of Haryana 3 the Apex Court

acquitted the accused as only two incised wounds were found although

three accuseds were alleged to have assaulted the victim. Moreover, no

opinion was taken from post-mortem doctor whether the seized weapon

could have caused similar injuries. In the present case, post-mortem doctor

stated seized Bhojali could have caused the injuries on Benoy. A large

number of injuries were found on him corroborating versions of the eye-

witnesses that all the appellants indiscriminately assaulted him.

(2011) 3 SCC 137

(2015) 17 SCC 804

Similary, in State of U.P. vs. Shiv Kumar And Others 4 the

presence of the eye-witnesses were doubtful and variation with regard to

their description of the incident and the nature of injuries found on the

deceased entitled the accused to benefit of doubt. In the present case,

presence of P.Ws. 1, 2 and 3 at the place of occurrence has not been

discredited. Incident occurred while they were sleeping with the deceased

at night. Their presence is fully established and the manner in which the

assault took place does not wholly rule out the nature of injuries found on

the deceased.

P.W. 1 also suffered injury in the course of the incident. Hence, she

is an injured eye-witness. She was taken to Barasat District Hospital and

in the bed head ticket (Exhibit 42) it is noted she has suffered lacerated

injury on her forearm. Learned Counsels for the appellants have referred to

the noting of the doctor who observed that the injury did not have classical

appearance of gunshot injury. P.W. 1 was thereafter shifted to R.G. Kar

Medical College and Hospital where she was admitted till 20.04.2012.

Admission report at R.G. Kar Medical College and Hospital (Exhibit 25)

noted bullet injury on forearm of the victim. This is corroborated from the

fact that P.W. 1 was treated in the hospital for gunshot injury for eight days

till her discharge. Thus, it cannot be said that her injury was superficial or

minor in nature.

P.W. 36, investigating officer seized empty cartridges and

ammunitions from the place where the body of Benoy was recovered. Two

(2005) 11 SCC 212

bullet heads were also recovered from the verandah of the house on

20.04.2012. P.W. 30, ballistic expert opined that the ammunitions seized at

the place of occurrence (Exhibits F and H) were live and the empty

cartridge and the fired bullet heads, namely, Exhibit A(i) and Exhibits (n+o)

had been fired from firearms seized on the showing of the appellants.

From the aforesaid evidence it is clear there was firing at the place of

occurrence. P.W. 1 had suffered gunshot injury as would appear from the

notings at the admission register (Exhibit 42) and the treatment given to

her as an indoor patient at R.G. Kar Medical College and Hospital (Exhibit

25). Apart from firing, as per eye-witnesses Benoy had been repeatedly

stabbed while Kagoti and Amrita had been violently pushed down on the

ground resulting in severe head injury and fracture of neck. Post motem

doctor found innumerable stab injuries on Benoy and internal

haemorrhage in scalp and fracture of hyoid bone of Kagoti and Amrita.

Hence, medical evidence substantially corroborates the aforesaid forms of

assault which caused the death of the victims. Thus, I am of the view

medical evidence on record does not wholly rule out the ocular version of

eye-witnesses so as to render the prosecution case improbable.

(ii) Identification of the appellants:-

Learned Counsels have argued that the incident occurred on a dark

night. There is no electricity in the locality. There is no reference of the

source of light in the FIR. It is also contended that the torch light have not

been seized from the appellants.

Evidence of the eye-witnesses show the appellants were carrying

torch lights. In the light of their torches, P.Ws. 1, 2 and 3, saw the

appellants. Torches are common household articles. Carrying of torches by

the appellants at night during commission of offence is, therefore, neither

unnatural nor improbable. P.W. 1 was under treatment in the hospital

when her statement was recorded. Under such circumstances, failure on

her part to mention source of light is a minor omission which does not

improbabilise the case. Similarly, non-seizure of torches which are common

household articles does not militate against the truthfulness of the

prosecution case. On the other hand, it appears that the appellants are the

neighbours of the deceased and were well-known to the eye-witnesses.

P.Ws. 1, 2 and 3 had the opportunity of seeing and hearing appellants at

close range. Hence, their identification by P.Ws. 1, 2 and 3 is convincing

and does not suffer from any infirmity.

(iii) Unnatural conduct of the witnesses:-

Appellants contended P.Ws. 1, 2 and 3 did not come out with the

names of the assailants immediately after the incident. Prosecution has not

examined any witness to show that she narrated the incident to her

neighbour. In fact, P.W. 28 who had met one of the sons of the deceased

stated he could not name the assailants. Names of the assailants did not

transpire in the bedhead ticket of Barasat Hospital marked as Exhibit 42.

Hence, implication of the appellants is an afterthought. Incident occurred

at night around 10/10:30 p.m.. Appellants and others being variously

armed came to the residence of Benoy. They unleashed terror and killed

Benoy and his parents. Out of fear, the surviving family members, that is,

P.W. 1 with her minor children ran away from the spot and took refuge in

Adivasi para. Appellants were at large in the locality and P.W. 1 and her

sons were afraid of their own lives. Harbouring under severe trauma and

unsure of their own lives, they kept mum during the night and next

morning. Only when police arrived, being assured of her safety, P.W. 1

narrated the incident at Barasat Hospital. A closure scrutiny of the

bedhead ticket (Exhibit 42) would show even prior to arrival of police she

had given indication with regard to the identity of the assailants by stating

they were well-known to her. However, in absence of the police, she was

afraid to give out their names. The dangerous character of the appellants

and widespread violence they had unleashed resulting the death of her

husband and in-laws clearly explains why P.W. 1 while indicating that the

miscreants were known persons did not come out with their names till

police arrived at the hospital. Hence, I am of the opinion the disclosure of

names by P.W. 1 at the hospital on 11.04.2012 at 11:15 a.m. in presence of

P.W. 8 has been duly explained and does not affect the credibility of the

prosecution case. Similarly, P.Ws. 2 and 3 (sons of Benoy) were under

severe trauma having witnessed the brutal murder of their father and

grandparents at the hands of the appellants. Thereafter, they had run away

from the house and taken shelter in Adivasi Para at night. Under such

circumstances, fearing reprisal and threat to life they did not disclose

names of the appellants till police interrogated them on the next day. I also

find little substance in the argument of the appellants that P.Ws. 2 and 3

did not witness the incident as they were not injured. P.Ws. 2 and 3 were

10 and 12 years old respectively at the time of occurrence. Appellants came

in a body and indiscriminately assaulted their father and grandparents.

They were variously armed. It is absurd to assume being confronted with

such brutal violence the little children would muster courage to resist the

aggressors.

(iv) Seizure of broken door:-

Learned Lawyers for the appellants contended P.W. 1 had claimed

her husband Benoy opened the door and the appellants had entered the

room. None of the witnesses stated that the appellants had broken the

door. On the other hand, investigating officer seized broken door from the

room of Benoy which is improbable. I.O., P.W. 36 deposed on 11.04.2022,

he had seized blood on the cemented floor as well as a broken door from

the room of Benoy under a seizure list (Exhibit 19). He identified the

broken door in Court. His version is corroborated by Jiten Patel and Ajit

Mondal, P.Ws. 14 and 26 respectively. From the evidence of the eye-

witnesses it appears that the appellants had violently trespassed into the

room of Benoy and had indiscriminately fired and assaulted the inmates. In

the course of their violent act, it is possible that a portion of the door may

have broken. Judged from this perspective, the narration of prosecution

witnesses does not militate against the seizure of broken door from the

room of Benoy.

Non-examination of vital witnesses and other deficiencies in investigation:-

Appellants have also assailed the prosecution case on the ground of

vital witnesses relevant for unfolding the prosecution case have not been

examined. It is contented Dilip Biswas and Provash Adhikary who took

P.W. 1 to Barasat Hospital and R.G. Kar Medical College and Hospital

respectively have not been examined. Dr. Manas Chaki in whose presence

P.W. 1 made statement to police officer, P.W. 8, has not been examined.

Although Sitala Puja was being held, none of the neighbours or local people

have been examined.

P.W. 1 deposed after the incident she had ran away from her house

and took shelter at Adivasi para. Thereafter, she was taken to Barasat

Hospital by Dilip Biswas. Bedhead ticket of Barasat hospital (Exhibit 42)

was produced in Court. Thereafter, she was shifted to R.G. Kar Medical

College and Hospital where she was treated for eight days. Admission

report of R.G. Kar Medical College and Hospital has also been proved

(Exhibit 25). In view of the aforesaid evidence on record, non-examination

of Dilip Biswas or Provash Adhikary does not affect the unfolding of the

prosecution case. P.W. 8 recorded the statement of P.W. 1 at Barasat

Hospital which was certified by Dr. Manas Chaki. P.W. 1 stated her

statement was recorded by P.W. 8 in presence of Dr. Manas Chaki who

certified the document. Her version is corroborated by P.W. 8 and the FIR

has been duly proved. It is nobody's case that P.W. 1 was unconscious or

unable to make statement. Under these circumstances, non-examination of

Dr. Chaki also does not affect the prosecution case. P.W. 4, a neighbour,

deposed at 10/10:30 p.m. he had seen the appellant with various arms in

the locality. Provash Dhali had threatened him. His evidence corroborates

the evidence of eye-witnesses, P.Ws. 1, 2 and 3. P.W. 4 remained unshaken

in cross-examination. It is not the number of witnesses but quality of

evidence which is relevant to prove a fact. P.W.4 is a neighbor of Benoy. He

has corroborated the prosecution case. Hence, non-examination of other

neighbouring witnesses is not fatal to the prosecution case.

Place of occurrence in the instant case has not seriously been

disputed. Dead body of Benoy was found on the land of Krishnapada

Ghosh, 100 yards from his house. Body of Kagoti was found in the

verandah of the house itself. In view of the aforesaid evidence on record,

failure to send blood stained wearing apparels or blood stains found from

the place of occurrence for FSL examination does not strike at the root of

the prosecution case.

It is also argued that the investigation was a biased one and one

Pradip Ghosh whose name had transpired in the course of investigation

had been discharged. P.W. 1 in her FIR is silent with regard to role of

Pradip Ghosh in the murder. I.O., P.W. 36 stated Pradip Ghosh had been

out of suspicion arrested in the course of investigation. Subsequently, due

to lack of evidence he was discharged. None of the witnesses during trial

deposed against the said Pradip Ghosh. In this backdrop, it cannot be said

that the investigation in the case was biased or the appellants have been

falsely implicated to screen the real offender.

Recovery of weapon on the showing of the appellants:-

Appellants have argued that the recovery of Bhojali and the arms and

ammunitions on the disclosure statements of appellant have not been

proved. It is contended as per seizure list Exhibit 20 an axe was recovered

on the showing of Samir Mondal. But one Bhojali (Mat Exhibit V) was

produced in Court. P.W. 36 deposed Samir made disclosure statement on

29.09.2012 which was marked as Exhibit 50. Pursuant to his disclosure

statement Samir Mondal brought out a Bhojali from his house. The seizure

has been witnessed by Bidhan Biswas (P.W. 17) and constable Sumit

Kumar Biswas (P.W. 27) who proved their signatures on the labels of the

seizure list. They also identified the Bhojali in Court. Thus, the seizure of

the Bhojlai on the showing of appellant Samir Mondal has been proved

beyond doubt. I.O. out of inadvertence may have misdescribed the article

as an axe in the seizure list. However, in the light of the unequivocal

evidence of the seizure witnesses who identified their signatures on the

label on the seized article and seizure list in Court, I have no doubt that the

Bhojlai produced in Court had been brought out by Samir Mondal from his

residence. It may not be out of place to note post-mortem doctor opined

that the said Bhojali may have been used to cause the injuries found on

the body of Benoy. Similarly, I.O., P.W. 36 as per leading statement of

Goutam Dhali (marked as Exhibit 54) recovered various firearms and

ammunitions from a bush behind the house of the said appellant. The

recovery was made in the presence of one Md. Hasanur Zaman, P.W. 19

who supported the prosecution case and proved his signatures on the

seizure list and other seized articles. P.W. 29, Sukumar Ghosh turned

hostile and did not support the prosecution case. He, however, admitted

his signature on the seizure list (Exhibit 22). On the disclosure statement

of accused, Manindranath Adhikary (Exhibit 57), I.O. recovered a pipe gun

and ammunitions in the presence of P.W. 17 and P.W. 19 who have

identified their signatures on the seizure list and labels on the seized

articles. P.W. 30, ballistic expert examined the seized firearms and

ammunitions. He opined the fire arms were in working condition and had

been fired previously and some of the ammunitions were live. He also

opined that the fire cartridge and bullets had been fired from semi-

automatic improvised pistol (MAT Exhibit XIII) and short improvised pistol

(MAT Exhibit XIV) seized from the appellants. In the light of the aforesaid

evidence, I am of the view the recoveries the arms and ammunitions as well

as the Bhojali on the disclosure statement of the appellants have been duly

proved.

Concluding remarks on the guilt of the appellants:-

There are overwhelming evidence on record that the appellants being

variously armed assembled together and entered the room of Benoy Biswas

in the night of 10.04.2012. Benoy was assaulted and dragged out to a

nearby field and murdered. His wife, P.W. 1 was also assaulted. His

parents, namely, Amrita and Kagoti tried to intervene. They were violently

thrown down on the ground and suffered head injuries and fracture of

neck. Miscreants also fired at the place of occurrence. These facts have

been proved beyond doubt which clearly establishes the role of the

appellants in the murder of Benoy and his parents Amrita and Kagoti.

However, there is no evidence on record that there was prior meeting of

minds between the appellants to commit the murder. Conspiracy to commit

the murder is independent of the offence of murder itself. It has been

argued no overt act was played by Samir Mondal, Sujit Dhali, I am unable

to agree with such proposition. All the appellants had come to the spot with

arms. They dragged Benoy to the field and mercilessly stabbed him. 27

injuries were found on his body. Hence, it is clear all the appellants being

variously armed had come in a body and had mercilessly assaulted Benoy

resulting in his death. Kagoti and Amrita were assaulted and violently

thrown to the ground. As a result, they suffered head injuries and fracture

of neck resulting in death. These circumstances prove beyond doubt that

the appellant shared the common intention to murder and pursuant

thereto caused the death of Benoy, Kagoti and Amrita. Hence, they are

liable to be convicted under section 302 read with section 34 IPC. Non-

joinder of section 34 IPC to the charge is of little consequence. Section 34 of

IPC speaks of constructive liability. It is not an offence by itself. When

charge has been framed under the substantive offence of murder and

appellants were fully aware of the roles played by them in the incident and

had effectively defended themselves, I am of the opinion convicting them for

the offence punishable under section 302 read with section 34 IPC instead

of section 302 IPC simplicitor does not either cause prejudice or occasion

failure of justice. However, as discussed above, no offence with regard to

prior meeting of minds between the appellants to commit the murder is

forthcoming. Hence, charge of conspiracy to commit house trespass and

murder has not been proved.

Accordingly, I hold the appellants, namely, Provash Dhali, Samir

Mondal and Sujit Dhali are guilty of committing offences punishable under

section 449 IPC and under sections 302 read with section 34 IPC.

Appellant Provash Dhali is also found guilty of committing offence

punishable under section 25 of the Arms Act.

Death Sentence - whether justified:-

Trial Judge has awarded death sentence to all the appellants. In

Bachan Singh vs. State of Punjab5 the Apex Court held when the offence

of murder is proved, life imprisonment is the rule and imposition of death

sentence is an exception. To award the maximum and irrevocable sentence

of death, the Court must cite "special reasons" as adumbrated in section

354(3) Cr.P.C. Only in rarest of rare cases the Court would be justified to

award death sentence.

To determine whether the case falls in the rarest of rare category, the

Court must ask itself the following questions:-

(a) Is there something uncommon about the crime of this case which

renders sentence of imprisonment for life inadequate and calls for a

death sentence?

(b) Are the circumstances of the crime of the case such that there is no

alternative but to impose death sentence even after according

(1980) 2 SCC 684

maximum weight age to the mitigating circumstances which speak

in favour of the offender?

In Machhi Singh And Others vs. State of Punjab6 the Apex Court

referring to Bachan Singh (supra) reiterated the exceptional nature of

death penalty and the procedure to determine the 'rarest of rare' cases:-

"38. ..."(i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability.

(ii) Before opting for the death penalty the circumstances of the 'offender' also require to be taken into consideration along with the circumstances of the 'crime'.

(iii) Life imprisonment is the rule and death sentence is an exception. In other words death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.

(iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised."

In Santosh Kumar Satishbhushan Bariyar vs. State of

Maharashtra7 the Apex Court emphasized that a case would come within

the category of 'rarest of rare' cases only when the alternate option of life

imprisonment is wholly foreclosed and there is no possibility of

rehabilitation and reformation of the convict. The Court held as follows:-

"64. Another aspect of the rarest of rare doctrine which needs serious consideration is interpretation of latter part of the

(1983) 3 SCC 470

(2009) 6 SCC 498

dictum-- "[t]hat ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed (emphasis supplied)". suggested selection of death punishment as the penalty of last resort when, alternative punishment of life imprisonment will be futile and serves no purpose.

66. The rarest of rare dictum, as discussed above, hints at this difference between death punishment and the alternative punishment of life imprisonment. The relevant question here would be to determine whether life imprisonment as a punishment will be pointless and completely devoid of reason in the facts and circumstances of the case? As discussed above, life imprisonment can be said to be completely futile, only when the sentencing aim of reformation can be said to be unachievable. Therefore, for satisfying the second exception to the rarest of rare doctrine, the court will have to provide clear evidence as to why the convict is not fit for any kind of reformatory and rehabilitation scheme. This analysis can only be done with rigour when the court focuses on the circumstances relating to the criminal, along with other circumstances. This is not an easy conclusion to be deciphered, but sets the bar very high by introduction of the rarest of rare doctrine."

To arrive at such a conclusion, it is necessary for the Court to advert

the mitigating circumstances quoted with approval in Bachan Singh

(supra) as follows:-

"68. "206. ... 'Mitigating circumstances.--In the exercise of its discretion in the above cases, the court shall take into account the following circumstances:

(1) That the offence was committed under the influence of extreme mental or emotional disturbance.

(2) The age of the accused. If the accused is young or old, he shall not be sentenced to death.

(3) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society.

(4) The probability that the accused can be reformed and rehabilitated.

The State shall by evidence prove that the accused does not satisfy Conditions (3) and (4) above.

(5) That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence.

(6) That the accused acted under the duress or domination of another person.

(7) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct.

207. We will do no more than to say that these are undoubtedly relevant circumstances and must be given great weight in the determination of sentence.' "

Only after adverting to the mitigating circumstances appearing from

the facts of a particular case and on considering the evidence (if any) led by

the prosecution if the Court is satisfied, there is no possibility of

rehabilitation and reformation of the convict, it would be justified to impose

the extreme penalty.

In the present case, the 'special reasons' given by the trial Judge to

award death penalty may be enumerated as follows:-

(a) It is a case of calculated cold-blooded murder of three innocent

persons. It was an inhuman brutal act displaying depravity of mind

and aggravated battery on the deceased persons. It was committed

after previous planning and such brutal murder is uncommon. In

such case, not awarding death sentence would give wrong message to

the society;

(b) If the convicts are released from custody, they would threaten the life

of witnesses;

(c) They did not express any repentance in the course of trial,

particularly, in their examination under section 313 Cr.P.C.;

(d) With regard to Provash Dhali it was noted that he had criminal

antecedents and had been convicted in an earlier case under sections

447, 307 IPC and 27 of the Arms Act and sentenced to 7 years'

imprisonment.

Having analyzed the evidence on record, I find the conclusions of the

trial Judge with regard to previous planning and extreme brutality are over

exaggerated. No evidence with regard to prior planning or meeting of minds

has come on record. Though 27 injuries were found on Benoy, most of the

injuries on the body of Kagoti and Amrita were bruises and abrasions. They

appeared to have died upon being violently thrown to the ground resulting

in brain injury and fracture of hyoid bone. No gunshot injuries were found

on the bodies of the deceaseds. It cannot be said that the appellants while

committing the act had acted with extreme brutality or depravity.

Evidence has also come on record there was dispute between Provash

Dhali and the deceased over land dealings. Owing to such dispute,

appellants came to the house of Benoy and murdered him. When his

parents intervened, they were violently dashed to the ground resulting in

their deaths. Dispute over property or land brokerage resulting in murder

is not uncommon so as to qualify the offence within the 'rarest of rare'

category to justify death sentence.

The other reasons given by the trial Court are equally unfounded.

Trial Judge held if life imprisonment is imposed, appellants would be

released from custody and would threaten witnesses. This finding is wholly

incorrect. Life imprisonment continues till the end of life of the convict.

Possibility of premature release of the convicts cannot a justification

to impose death penalty. Premature release is within the executive domain

and is circumscribed by statutory restrictions envisaged under section

432/433A Cr.P.C. Opinion of the convicting/confirming court is a relevant

consideration before grant of such relief. Clemency jurisdiction in the

constitutional scheme is vested in the highest functionaries, namely, the

President and the Governor which again is subjected to judicial review.

Premature release is discretionary and none of the high functionaries

vested with the discretionary jurisdiction would act dehors application of

mind to the issue of witness protection. Under such circumstances, trial

Court was incorrect to hold in the event of imposition of life imprisonment,

release of the appellants was inevitable and would threaten the lives of

witnesses.

In the course of trial as well as their examination under section 313

Cr.P.C. appellants denied their culpability. Noting is placed on record to

show they behaved in a manner which would give an impression they were

not repentant of the crime. On the other hand, they prayed for mercy.

Sentence hearing was reduced to a mere formality where no effort

was made on the part of the trial Judge to advert to the mitigating

circumstances or call upon the State to lead evidence that there was no

possibility of reformation or rehabilitation of the appellants. In this

backdrop, conclusion of the trial Court that there was no repentance in the

minds of the appellants is a mere speculation on which the extreme penalty

of death ought not to have been awarded.

Apart from referring to the brutality of the crime involving murder of

three persons, no effort was made by the trial Court to assess the

mitigating circumstances relating to the appellants to come to a conclusion

that there was no possibility of their reformation or rehabilitation and the

alternate option of life imprisonment was wholly foreclosed.

In Panchhi And Others vs. State of U.P.8 the Apex Court while

dealing with a case of murder of four persons including a little child, inter

alia, held as follows:-

"20. ... Brutality of the manner in which a murder was perpetrated may be a ground but not the sole criterion for judging whether the case is one of the "rarest of rare cases" as indicated in Bachan Singh case. In a way, every murder is brutal, and the difference between one from the other may be on account of mitigating or aggravating features surrounding the murder."

In Gudda vs. State of M.P.9 the Apex Court was dealing with a case

of murder of three persons including murder of a pregnant lady and a

young child. It held as follows:-

"27. This Court has consistently held that the number of deaths or the factum of the whole family being wiped off cannot be the sole criteria for determining whether the case falls in the category of "the rarest of the rare". (See Aqeel Ahmad v. State of U.P. [(2008) 16 SCC 372], Ram Pal v. State of U.P. [(2003) 7 SCC 141]

30. Indeed victims of the crime include an innocent child of 5 years and a pregnant lady who were assaulted by the appellant who was then in a position of trust having invited them to his house for lunch. But this alone would not be sufficient to place the crime in the category of "the rarest of the rare" as the proportion of culpability of the appellant could be separated for the three victims into two parts: the deceased and the pregnant lady and the young child.

31. As stated above, on one hand the crime is premeditated in respect of the deceased husband, while on the other, no motive or pre-orchestration could be culled out for the other two deceased persons. The two murders seem to have translated due to his sudden realisation and extreme fear of being caught

(1998) 7 SCC 177

(2013) 16 SCC 596

for the murder of Sunil Gupta and also, to save himself from being shunned by the society. Having said so, the brutality envisaged in the premeditated murder of Sunil Gupta alone, in the light of present facts, does not inspire confidence so as to place it in the category of "the rarest of the rare". Further, the appellant is a young man of about 35 years and neither does he have any criminal antecedents nor is it stated that he is or has been an anti-social element. The future possibilities of his reform also cannot be ruled out."

Similarly, in Ram Pal vs. State of U.P.10, the Apex Court held in

all cases multiple murders death penalty need not be imposed. It held

as follows:-

"5. ... It is true, the incident in question has prematurely terminated the life of twenty-one people but then the number of deaths cannot be the sole criterion for awarding the maximum punishment of death. While in a given case death penalty may be the appropriate sentence even for a single murder, it would not necessarily mean that in every case of multiple murders death penalty has to be the normal punishment."

In the present case, the appellants nursed grudge against Benoy and

definitely intended to kill him. They struck 27 blows on his body. However,

most of the injuries on the bodies of his parents Kagoti and Amrita are

bruises and abrasions. Appellants had dashed the elderly couple to the

ground resulting in their death. There was no pre-meditation or brutality in

these murders.

Mr. Ahmed has argued appellant Provash Dhali has criminal

antecedents and was convicted in an earlier case of attempt to murder.

This is certainly an aggravating circumstance. However, it must be

balanced with the mitigating circumstance, that is, age of the appellant.

Provash Dhali is about 70 years old and imposition of the alternative option

(2003) 7 SCC 141

of life imprisonment without remission for 30 years would, in my

estimation, be just punishment in the facts of the case.

Other appellants, namely, Samir Mondal and Sujit Dhali have no

criminal antecedents and have strong roots in society. Though there is

evidence they had participated in the assault of Benoy, there is no clear

evidence that they had participated in the assault of his parents, Kagoti

and Amrita. In view of the aforesaid mitigating circumstances, they may be

imposed imprisonment for life in place of death sentence for the offence

punishable under section 302/34 IPC.

In the light of the aforesaid discussion, we modify the sentence

imposed on the appellants and direct as follows:-

All the appellants shall suffer rigorous imprisonment for 10 years

and pay a fine of Rs. 10,000/- each, in default, to suffer rigorous

imprisonment for one year for the offence punishable under section 449

IPC.

Appellants Sujit Dhali and Samir Mondal shall suffer rigorous

imprisonment for life and pay a fine of Rs. 50,000/- each, in default, to

suffer rigorous imprisonment for three years for the offence punishable

under section 302 IPC read with section 34 IPC.

Appellant Provash Dhali shall suffer rigorous imprisonment for life

without remission for 30 years and pay a fine of Rs. 50,000/- for the

offence punishable under section 302 IPC read with section 34 IPC.

Sentenced imposed on Provash Dhali for the offence punishable

under section 25 of the Arms Act shall remain unaltered.

All the sentences to run concurrently.

Fine amount, if realised, is directed to be awarded to the minor sons

of the deceased Avijit Biswas and Biswajit Biswas, P.Ws. 2 and 3

respectively.

Period of detention suffered by the appellants, namely, Provash

Dhali, Sujit Dhali and Samir Mondal during investigation, enquiry and trial

shall be set off from the substantive sentence imposed upon their in terms

of section 428 of the Code of Criminal Procedure.

The death reference and the criminal appeals are, accordingly,

disposed of.

Lower court records along with copies of this judgment be sent down

at once to the learned trial Court as well as the Superintendent of

Correctional Home for necessary compliance.

Photostat certified copy of this order, if applied for, be given to the

parties on priority basis on compliance of all formalities.

I agree.

(Ananya Bandyopadhyay, J.) (Joymalya Bagchi, J.)

PA (Sourav)