Palan Ali Naskar & Sabir Ali Laskar vs The State Of West Bengal
2022 Latest Caselaw 6433 Cal

                                      1




                     IN THE HIGH COURT AT CALCUTTA

                      (Criminal Appellate Jurisdiction)

                               Appellate Side



Present:

The Hon'ble Justice Debangsu Basak

            And
The Hon'ble Justice Bibhas Ranjan De


                                DR 5 of 2020
                     Palan Ali Naskar & Sabir Ali Laskar
                                     Vs
                          The State of West Bengal
                                    With
                              C.R.A 85 of 2020
                           Palan Ali Laskar & Anr
                                     Vs
                          The State of West Bengal

For the appellants       :Mr. Indrakant Jha, Advocate



For the State           :Ms. Anusuya Sinha, Advocate
                         Mr. Pinak Kr. Mitra, Advocate


Heard on                 : August 23, 2022
Judgment on              : September 09, 2022



Bibhas Ranjan De, J.:-

   1.

Two appellants were found guilty and convicted on 27.01.2020

under Section 363/302/201/379/411/34 of the Indian Penal

Code (for short IPC) and by the order dated 28.01.2020 they

were sentenced to death for the offence punishable under

Section 302 of IPC. They are also sentenced for the offences as

follows:

  Offence   Punishable      under Sentence
  Section
    1. 63/34 IPC                   Sentence to     suffer rigorous
                                   imprisonment   for a term of ten
                                   years each.
    2. 379/411/34 of IPC           Sentence to    suffer rigorous
                                   imprisonment   for a term of 3
                                   years each

And the sentences were directed to run concurrently.

2. Ld. Additional Sessions judge 1st Track Baruipur, South 24

Parganas passed the aforesaid order of conviction and sentence

giving rise to Death Reference Case No. 5 of 2020 since under

Provision of Code of Criminal Procedure (for short Cr.P.C), death

sentence recorded by a Judge is subject to confirmation by this

Court. Sabir Ali Laskar and Palan Ali Laskar preferred an appeal

against that order of conviction and sentence registered as

Criminal Appeal No. 85 of 2020. In connection with Sessions

Trial Case No. 02 (10) 2012 arising out of Sessions Case No. 39

(2) 2008 corresponding to Sonarpur Police Station Case No. 509

of 2007 dated 27.09.2007.

3. We propose to dispose of both the death reference as well as

criminal appeal preferred by the convict appellants by this

common judgement.

4. The prosecution case in a nut shell is: On 27.09.2007 one

Daulat Ali Mondal of village Joykrishnapur, Chiary Post Office,

Banhoogly in the District of South 24 Parganas, lodged a written

compliant before the officer in charge Sonarpur Police Station

South 24 Parganas alleging inter alia that his daughter aged

about 12 years was found missing on and from 22.09.2007 at

about 12 to 12.30 pm and on 23.09.2007 at about 3.00 p.m. her

dead body was found in a nearby cannel inside a guava garden

situated at Joykrishnapur. Written complaint further shows that

Polan Ali Laskar ( for short 'A1'), Sabir Ali Laskar ( for short 'A2')

and one of their associate kidnapped his minor daughter and

after outraging her modesty threw her dead body inside the

cannel after snatching her ear rings. It is further alleged that

few days ago A1 and one of their associate threatened to abduct

her and murder after outraging her modesty.

5. On receipt of the said complaint the Sonarpur Police Station

case no. 509 of 2007 dated 27.09.2007 was started under

Section 363/376(g)/302/201/34 of Indian Penal Code (for short

IPC) and one Sub Inspector (for short S.I), Somnath Dey

attached to Sonarpur Police Station was entrusted with the

investigate this case.

6. During investigation S.I Somnath Dey, (PW-14) visited the place

of occurrence and prepared rough sketch map with index

(Exhibit 10). He examined available witnesses and recorded their

statement under Section 161 of Criminal Procedure Code (for

short 'Cr.P.C') and collected papers in respect of U.D. (unnatural

Death) case being no. 176 dated 23.09.2007. He arrested A1, A2

and Bulu Sarkar @ Sardar during police custody a pair of ear

rings of deceased was recovered by a seizure list ( Exhibit 4/4)

following statement of A1 (exhibit 17). He also collected the Post

Mortem Report (exhibit 11). On his prayer Test Identification

Parade (for short T.I. Parade) was held in respect of seized ear

rings of the deceased.

7. On completion of Investigation, he submitted charge sheet

against all three accused/A1, A2 and one Bulu Sarkar @ Bulu

Sardar under Section 363/367(g)/302/201/34 of IPC with

adding sections 379/411 of IPC. Ld. Additional Chief Judicial

Magistrate, Baruipur, South 24 Paragans, took cognizance of the

offence and committed the case in respect of A1 and A2 to the

Session Judge, at Alipur who then transfer the case to the Court

of Ld. Additional Sessions Judge, Fast Track Court, Baruipur,

South 24 Parganas for trial. It is pertinent to mention here Ld.

Additional chief judicial Magistrate Baripur, inquired about the

claim of juvenility of Bulu Sarkar by his order dated 27.12.2007

and he found Bulu sarkar as a juvenile and passed an order

directing juvenile Bulu Sarakar to be produced before juvenile

justice Board at Salt Lake, Kolkata, on 02.01.2208. Accordingly,

Bulu Sarkar was produced before Juvenile Justice Board for

trial.

8. On receipt of the record Ld. Trial Judge, framed charges against

two accused persons (appellants of this case) under Section

363//34/376(F)/34/ 302/34/379/411/34 of IPC and contends

of the charge were read over and explained to the accused/

appellants who pleaded not guilty and claimed to be tried. Hence

the trial.

9. Prosecution examined 18 witnesses and proved a good number

of documents marked as exhibit 1 to 21. One pair of ear ring

was admitted in evidence as Mat exhibit I and appellants were

examined under section 313 of Cr.P.C at the end of trial. No

evidence was adduced on behalf of the appellants.

10. Upon consideration of the evidence on record and the

submissions made by the parties, Ld. Judge has observed that

nothing improvement and/or embellishment and/or major

contradictions coming out from the statement recorded under

Section 161 of Cr.P.C did not make any difference to the

prosecution case by virtue of explanation to Section 162 of

Cr.P.C as there was sufficient corroborating evidence. Thereby,

the Trial Court has reached the conclusion that the appellants

are guilty of the offence and has convicted than and sentenced

to death by the order of conviction dated 27.01.2020 and

28.01.2020 and also ordered sentence in respect of other

offences charged against the accused.

Argument Advanced:

11. Ld. Advocate, Mr. Indrakanta Jha appearing on behalf of

the appellants drew our attention to the evidence of witness who

are interested and cannot be relied upon in a case of

circumstantial evidence. Assailing the evidence of Prosecution

Witness no.-1 and prosecution Witness (for short PW) -2 Mr. Jha

has contended that they did not know how her daughter was

missing or how she died and PW-3 was not present at the time

of recovery of the dead body. PW-4 could not say the place where

from dead body was recovered.

12. Mr. Jha has referred to the evidence of PW-5 and

submitted that according to his evidence the dead body was

identified by PW-1 and PW-2 (Parents of the deceased) but these

two witnesses clearly deposed that they did not visit the place of

recovery of dead body. At the same time PW-6 was also not

present at the time of recovery of dead body.

13. Mr. Jha further took us to the evidence of PW-11 together

with PW-1 and PW-2 and tried to establish a contradiction

regarding presence of PW-1 and PW-2 either at the time of

inquest report or seizure of earring.

14. Mr. Jha streneously contended about laches on the part of

PW-14 (Investigating Officer) who did not examine the autopsy

Doctor and failed to recover ligature by which death was caused

and thereby Mr. Jha has tried to create a doubt regarding

homicidal death.

15. Mr. Jha has further submitted that prosecution failed to

proved the 'last seen' theory in respect of offence of kidnapping

as PW-1 (mother of the deceased) testified that her deceased

daughter was with her till 11.30 a.m. and thereafter she left for

playing in the neighbour's house.

16. In support of his contention Mr. Jha has relied on

following authorities:-

 (2018) 3 C. Cr. LR (CAL) 541 (Tarak Dey v. State of west

Bengal)

 (2015) 3 C. Cr. LR (SC) 34 (Tomaso Bruno & anr. v. State

of U.P)

 (2019) 2 C. Cr. LR (SC) 8 (Prakash Chand v. State of

Himachal Pradesh).

17. Per contra, Ld. Advocate Ms. Anusuya Sinha appearing on

the behalf of the State has referred to the evidence on record

particularly evidence of parents (PW-1 & PW-2) of the deceased,

and maternal uncle (PW-5) of deceased as well as evidence of

other witnesses and submitted that all the circumstances

appearing in the evidence including the recovery of earring

following a statement of accused/A1 are sufficient to prove the

guilt of the appellants leaving no doubt.

18. That apart, Ms. Sinha supporting the impugned judgement

submitted that the conviction of the accused persons/appellants

is strictly in accordance with law and there is no illegality or

infirmity in the same warranting interference by this Court.

Analysis of Evidence

19. In this case prosecution examined as many as 18

witnesses as follows:-

  Prosecution witness no.     Name &          Identification   of   the
                              witness

  PW-1                        Farida Bibi, mother of the deceased
  PW-2                        Daulat Ali Mandal father of the



        deceased who lodged complain
PW-3    Amirul @ Babu Mandal, cousin
        brother of deceased
PW-4    Badsha Ali Mandal (Neighbour of the
        deceased)
PW-5    Ramjan Molla, another cousin
        brother of decease
PW-6    Hider Ali Gharami, uncle of deceased
PW-7    Omed Ali Gharami, another uncle of
        deceased
PW-8    Mahibul Hossain, The then Assistant
        sub Inspector attached Sonarpur PS,
        who prepared inquest report
PW-9    Sk. Barhan, neighbour of deceased

PW-10 Nasir Molla, neighbour of deceased PW-11 Abdulla Mondal, Uncle of deceased PW-12 Ananda Gopal Sannal, The then assistant Sub inspector of Police Soanrpur PS, who receipt the complaint and registered the case after preparing formal FIR (exhibit-

8) PW-13 Bikash Mandal, Home Gurad, who accompanied the dead body to Mominpur morgue in connection UD Case No. 176 dated 23.09.2007 PW-14 The then sub inspector of Police who investigated this case PW-15 Dr. D. Sarkar, the then A.C.M.O.H Medico Legal, South 24 parganas at Alipur who performed Post Mortem on the dead body of the deceased PW-16 Swapan Mukherjee, the then Constable attached to Sonarpur PS PW-17 Mrs. Supra Rai, the then Senior Scientific Officer attached to forensic Science Laboratory Biological Division

PW-18 Noor Ali Laskar, another uncle of deceased

20. We have carefully examined the entire facts and evidence

on record. From the evidence on record we find that in this case

to bring home the charges framed against the appellants, the

prosecution side has fully relied on the evidence of PW-1 to 7,

PW-9 to 11 and PW-18 and so far as the charge of murder is

concerned and so far as the other charges are concerned

prosecution relied on the evidence of rest witnesses including

PW-1, PW-9 and PW-10.

21. There is no denying of the fact that the victim was found

missing from her house on 22.09.2007 and her dead body was

found floating in a cannel beside Guava Garden on 23.09.2007.

That the place of recovery of the dead body has been duly

corroborated by the sketch map (exhibit -10) with index (exhibit

10/1) which was prepared by Investigating Officer (for short I.O)

(PW-14). On careful scrutiny of the evidence of I.O (PW-14) we

do not find any single question contradicting or denying the

preparation of sketch map with index.

22. From the evidence of parents (PW-1 & PW-2) and maternal

uncle (PW-7) of the deceased we find that on 22.09.2207 their

daughter was found missing. They started searching their

daughter along with the neighbours. They saw the shoe of their

daughter at the pond. They casted net at the pond but their

daughter was not found. On the next day appellants as well as

one Bulu Sarkar @ Sardar called PW-7 and took him to the

Guava Garden. After reaching there the appellants and Bulu

Sarkar showed PW-7 the dead body of the victim floating in the

cannel near Guava Garden. At that time A2 told PW-7 regarding

colour of wearing apparel of victim also. PW-7 returned home

and informed other people then PW-2 along with other

neighbours' went to Guava Garden. Police was informed and

police took away the dead body of victim. Both the witnesses i.e

PW-1 and PW-2 have testified that one day before her death

deceased told them that appellants pulled her hands and

threatened. In cross-examination of these two witnesses, we find

that nothing contradictory has been elicited from their cross-

examination regarding the fact of missing and recovery of the

dead body. Both the witnesses deny all suggestions put to them.

23. From the evidence of I.O (PW-14) it is found that he

collected relevant papers in connection with unnatural death

case being no. 176 dated 23.09.2007 which was recorded in

connection with this case.

24. PW-8, Assistance Sub Inspector of Police attached to

Sonarpur PS performed inquest (exhibit -5) at the place where

dead body was recovered in connection with UD Sonarpur PS

Case No. 176 of 2007 dated 23.09.2007. On 27.09.2007 the

written complaint was lodged by PW -2 (father of the deceased).

It is true that written complaint was filed after four days from

the date of recovery of the dead body. Written complaint

(exhibit-3/1) shows the explanation of delay due to busy in last

rites of his daughter and also due to their mental shocked for

death of his minor daughter. The reason explained in the written

complaint is found acceptable as that was never challenged

either in course of his cross examination or at the time of

argument.

25. Mr. Jha, referring a case of Prakash Chand (supra), tried

to make this Court understand that delay of four days in lodging

F.I.R is fatal to prosecution case.

26. In Prakash Chand (supra) Hon'ble Apex Court dealt with a

case of 376/506 of IPC where FIR was lodged after 7 months of

alleged incident and such huge delay has not been explained

satisfactorily unlike our case where a dejected and shocked

father lodged a written complaint only after four days after

completing last rites of his minor daughter.

27. From the evidence of PW-1 to PW-7 and prosecution

witness no. 9 to 11 & 18 we find that it is an admitted position

that victim i.e. minor daughter of PW-1 and PW-2 was found

missing on an form 22.09.2007 and was found dead lying in a

Kennel within a Guava Garden which has been duly

corroborated by sketch map with index (exhibit 10 & 10/1).

28. From the evidence of witnesses it is also not disputed from

the evidence of PW- 1 to PW-7 and also from the evidence of PW-

9 to PW-11 and 18 that after missing of victim on 22.09.2007 all

this witnesses started searing for her and even they casted net

in a nearby pond where shoe of victim was found but in spite of

thorough search victim was not found.

29. From the evidence of PW-7 (Maternal uncle of the

deceased) has specifically stated that on the next day i.e on

Sunday in the morning they again stared searching his niece

and at about 3/3.30 p.m. he was sitting in the bank of pond

while appellants along with Bulu came to him and asked him to

go with them. He was taken to a place inside the Guava Garden

beside Suti Khal. Thereafter, those three persons showed PW-

7the dead body of the deceased wearing black colour frock. Then

he returned home and informed others. He also narrated the

same incident to the Ld. Magistrate who recorded his statement

under Section 164 Cr.P.C (exhibit-15). We found no single

contradiction between his evidence recorded before the Court

and the statement (exhibit-15) recorded by Ld. Magistrate under

Section 164 Cr.P.C. PW 1 and 2 also corroborated the fact that

the appellants and Bulu showed the dead body of deceased to

PW-7.

30. From the careful scrutiny of the cross examination of PW-

7 we do not find any material discrepancies regarding the fact

of showing dead body of victim in a canal of a Guava Garden at

the instance of the appellants and one Bulu (juvenile).

31. Such fact of showing dead body of victim in a Canal of

Guava Garden as per sketch map with index (exhibit 10 &10/1)

has been further ratified by A1in reply to question nos. 18, 23 &

25 in course of his examination by the Ld. Judge under Section

313 of Cr. P.C. Again, A2 ratified the said fact of showing dead

body of the victim in reply to question nos. 12, 18, 22 & 25. This

fact was corroborated by other witnesses examined in this case

as well.

32. From the evidence of PW-1 & PW-2 it appears that prior to

death of their daughter once their daughter told them that

appellants pulled their daughter's hand and also threatened.

PW-1 in her evidence particularly in cross-examination has

deposed that houses of appellants are situated in the southern

side of their house intervening only two houses. During cross-

examination following questions were put to PW-1 as follows:-

" It is fact that there is only the said one road to go to the house of Sabir or Palan from my house by the side of the pond.

It is not a fact that if any persons walk through the said road or talk on that road, that could be audible or visible from the house situated at the side of the said road."

33. The questions and answers tendered by the PW-1 in her

cross-examination it almost clear that on the alleged date of

missing the victim went to the neighbouring house i.e houses of

appellants for playing and by putting the aforesaid question to

the witnesses from the side of the defence it appears that

defence took an effort to prove that at the time of going to the

neighbouring houses of appellants victim sliped into the pond.

We are not dealing with any case of recovery of dead body of the

victim from the pond near the house of complainant and the

appellants. Therefore, by putting the aforesaid questions during

cross-examination defence side virtually added a support to the

prosecution case.

34. Now we propose to come to the evidence of doctor. PW-15

who performed the Post Mortem examination and during

examination he found the following injuries:-

"1. One ligature mark encircling the neck measuring 12" X 1" X no gap. The skin over the ligature mark was brownish abraded and punchmentised. The sub tissue under the ligature was whiten and hardened with 3" X 3" bruise in the neck muscle. The ligature mark was transversed circular continuous and at the lower border of the thyroid cartilage. Fracture of the greater carnal hyroid seen. Bruise over first to sixth tracheal region.

2. 4" X 6" bruise over the left chest to Palm.

3. 4" X 5" bruise over the middle of anterial chest wall

4. Bruise over the rectal mucus membrane.

5. Bruise over the vaginal wall and cervix. The injuries showed the vital reaction. In my opinion the death was due to the effects of strangulation by ligature antemortem and homicidal in nature. This is the Post Mortem Report which was written by me under my own hand writing and signature. Let the Post Mortem Report in original be marked as Ext. 11."

35. From the evidence of PW-15 it is found that death was due

to effect of strangulation by ligature ante mortem and homicidal

in nature. Post Mortem report was admitted in evidence (as

exhibit -11). Mr. Jha in course of his argument pointed out that

Investigating Officer PW-14 did not take any effort to recover

ligature and that is why evidence of doctor cannot be taken into

account. In support of his contention, he referred to the ratio of

Tomaso Bruno (supra) wherein Hon'ble Apex Court dealt with

the incident of murder which took place in a hotel room having

CCTV facilities and in that case neither any CCTV footage was

recovered nor any blunt substance was recovered though cause

of death was due to strangulation by the support of blunt and

hard substance.

36. We are sorry not to subscribe to the argument advanced by

Mr. Jha on the issue of no recovery of ligature in our case. In the

case at our hand dead body of the victim was recovered from a

canal in a Guava Garden and far away from the house of the

victim unlike the case dealt with by the Hon'ble Supreme Court

in Tomasho Bruno (supra).Therefore, we cannot overlook the

evidence of doctor who found several injuries and ligature mark

on the body of the victim only because of no recovery of

ligature by the I.O. That apart, we cannot over look the entire

evidence and record supported by evidence of doctor even if

there was any laches on the part of Investigating Officer.

Therefore, there is no doubt of the fact that victim was murdered

and thrown away in a canal near Guava Garden.

37. Next, we propose to discuss evidence on the issue of

recovery of ear rings. From the evidence of PW-5, PW-9, PW-10

& PW-11 we find that after 2/3 days of arrest of appellants

Police came to the house of Palan and seized one pair of gold ear

rings from the bed of Polan in presence of those witnesses. The

seizure list including signature of witness were admitted in

evidence as exhibit 4 series. Those witnesses also identified that

earrings (Mat exhibit-1) in Court also. During investigation

Police recorded statement of A1 and relevant portion of that

statement leading to discovery of earrings was admitted in

evidence as exhibit 17. It is fact that statement of accused before

Police bears no value in the eye of law but the fact stated in the

statement leading to discovery of any incriminating article is

very much admissible under Section 27 of the Evidence Act as

an exception. From the cross-examination of the aforesaid

witnesses we find hardly any infirmity or contradictions with

regard to recovery of earrings from the house of A1 following a

leading statement (exhibit-17) of Palan.

38. After scanning of entire evidence available on record we

find the following chain of circumstances as proved against the

appellants:-

 On 22.09.2007 the victim was found missing.

 Victim was playing in the neighbouring houses of the

appellants.

 All the neighbouring people started searching the entire area

till 3.00/3.30 p.m. on the next day i.e 23.09.2007.

 On 23.09.2007 appellants and one Bulu Sarkar (who was

forwarded Juvenile Justice Board for trial) at about 3.30 p.m.

informed about dead body of the minor victim to her maternal

uncle (PW-7) who was sitting beside a pond.

 Appellants and Bulu Sarkar took PW-7 to a Guava Garden

beside Suti Khal far away from the residence of victim.

 Appellants and Bulu Sarkar showed PW-7 the dead body of

victim lying in Suti Khal.

 After arrest of appellants police recorded statement of both

the appellants and appellant Palan made a statement leading

to recovery of ear rings of victim, during their Police custody.

 Investigating Officer (PW-14) seized a pair of earrings of victim

following that statement (exhibit-17) of appellant Palan and

seized in presence of witnesses (PW-5, PW-9, PW-10 & PW-

11), under a seizure list (exhibit 4 series).

39. The aforesaid chain of circumstances against the

appellants, in our view, is of conclusive nature. There is a

complete chain of circumstances which show that in all human

probabilities, the offence has been committed by the appellants

furtherance of their common intention. Therefore, having regard

to the entire evidence on record we concur with the order of

conviction of appellants under Section 302/363/379/411/34 of

IPC.

Sentence:-

40. The reasons given by the Ld. Trial Judge at the time of

passing order of sentence we find hardly any balance sheet of

aggravating and mitigating circumstances drawn up by the Ld.

Trial Judge before passing order of sentence to death. Ld. Judge

only focused on the effect of the crime on the society at large.

41. It is worthy to mention here that Mr. Jha did not argue on

the point of sentence presumably for the presumably reason

that he strenuously contended in favour of the acquittal of the

accused. So, it is our duty to draw up a balance sheet of

aggravating and mitigating circumstances in view of guideline

envisaged in a case of Manoj and others Vs. State of Madhya

Pradesh, 2022 SCC Online SC 677 as follows:-

"200. In Macchi Singh, this court extrapolated the principles from Bachhan Singh, and merit repetition:

38. In this background the guidelines indicated in Bachan Singh case [(1980) 2 SCC 684 : 1980 SCC (Cri) 580 : AIR 1980 SC 898 : 1980 Cri LJ 636] will have to be culled out and applied to the facts of each individual case where the question of imposing of death sentence arises. The following propositions emerge from Bachan Singh case [(1980) 2 SCC 684 : 1980 SCC (Cri) 580 : AIR 1980 SC 898 : 1980 Cri LJ 636]:

(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.

39. In order to apply these guidelines inter alia the following questions may be asked and answered:

(a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence?

(b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender?

40. If upon taking an overall global view of all the circumstances in the light of the aforesaid proposition and taking into account the answers to the questions posed hereinabove, the circumstances of the case are such that death

sentence is warranted, the court would proceed to do so.

206. In Shankar Kisanrao Khade98 this court developed yet another framework of the 'crime test', criminal test' and 'rarest of rare test' (which, was held to be distinct from the 'balance test' that was discouraged in Santosh Bariyar and subsequently, in Sangeet as well):

52. .... In my considered view, the tests that we have to apply, while awarding death sentence are "crime test", "criminal test" and the "R-R test" and not the "balancing test". To award death sentence, the "crime test" has to be fully satisfied, that is, 100% and "criminal test" 0%, that is, no mitigating circumstance favouring the accused. If there is any circumstance favouring the accused, like lack of intention to commit the crime, possibility of reformation, young age of the accused, not a menace to the society, no previous track record, etc. the "criminal test" may favour the accused to avoid the capital punishment. Even if both the tests are satisfied, that is, the aggravating circumstances to the fullest extent and no mitigating circumstances favouring the accused, still we have to apply finally the rarest of the rare case test (R-R test). R-R test depends upon the perception of the society that is "society- centric" and not "Judge-centric", that is, whether the society will approve the awarding of death

sentence to certain types of crimes or not. While applying that test, the court has to look into variety of factors like society's abhorrence, extreme indignation and antipathy to certain types of crimes like sexual assault and murder of intellectually challenged minor girls, suffering from physical disability, old and infirm women with those disabilities, etc. Examples are only illustrative and not exhaustive. The courts award death sentence since situation demands so, due to constitutional compulsion, reflected by the will of the people and not the will of the Judges.

216. Mitigating factors in general, rather than excuse or validate the crime committed, seek to explain the surrounding circumstances of the criminal to enable the judge to decide between the death penalty or life imprisonment. An illustrative list of indicators first recognised in Bachan Singh110 itself:

"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 the 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.

227. To do this, the trial court must elicit information from the accused and the state, both. The state, must - for an offence carrying capital punishment - at the appropriate stage, produce material which is preferably collected beforehand, before the Sessions Court disclosing psychiatric and psychological evaluation of the accused. This will help establish proximity (in terms of timeline), to the accused person's frame of mind (or mental illness, if any) at the time of committing the crime and offer guidance on mitigating factors (1), (5), (6) and (7) spelled out in Bachan Singh. Even for the

other factors of (3) and (4) - an onus placed squarely on the state - conducting this form of psychiatric and psychological evaluation close on the heels of commission of the offence, will provide a baseline for the appellate courts to use for comparison, i.e., to evaluate the progress of the accused towards reformation, achieved during the incarceration period.

228. Next, the State, must in a time-bound manner, collect additional information pertaining to the accused. An illustrative, but not exhaustive list is as follows:

a) Age

b) Early family background (siblings, protection of parents, any history of violence or neglect)

c) Present family background (surviving family members, whether married, has children, etc.)

d) Type and level of education

e) Socio-economic background (including conditions of poverty or deprivation, if any)

f) Criminal antecedents (details of offence and whether convicted, sentence served, if any)

g) Income and the kind of employment (whether none, or temporary or permanent etc);

h) Other factors such as history of unstable social behaviour, or mental or psychological ailment(s),

alienation of the individual (with reasons, if any) etc."

42. It is needless to mention that in this case Trial Court

could not elicit any information either from the accused or from

the State regarding psychological and psychiatric evaluation of

the accused which can help establishing proximity (in terms of

timeline), to the accused's frame of mind (or mental illness, if

any) at the time of committing crime and offer guidance on

mitigating factors spelled out in Bachan Singh v. State of

Punjab (1980) 2 SCC 684.

43. However, on requisition of this Court vide order dated

11.08.2022 State has also submitted a report on 19.08.2022

divulging the conduct of the convict as follows:-

"His behavior inside this Correctional Home is good and I have not receipt any adverse report against him."

44. In this particular case we find from the record that the

appellants committed the crime along with another associate

who was adjudged as juvenile and that associate faced his trial

under Provision of the Juvenile Justice Act. We further find from

the evidence that at the time of incident in the year of 2007 age

of A1 was 21 years and A2 was 23 years of age and there is no

record of any previous heinous crime committed by the

appellants and there is also no evidence that they will be danger

to the society if death sentence is not awarded. Of course, we are

convinced that offence committed by the appellants deserves

severe condemnation but, on cumulative fact and circumstances

of this case we do not think that this case false within the

category of 'rarest of rare cases'.

Conclusion

45. We find it appropriate to modify the sentence of death to

that imprisonment for life for the offence punishable under

Section 302 IPC.

46. Criminal Appeal No. 85 of 2020 stands dismissed and

Death Reference Being No. 5 of 2020 is refused.

47. The order of conviction recorded by Ld. Trial Judge against

the appellants under Section 302/363/379/411/34 of IPC in

C.R.A No. 85 of 2020 is hereby confirmed subject to following

modifications.

48. Both the Appellants are sentenced to suffer rigorous

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

default further rigorous imprisonment for five years each for the

offence punishable under Section 302 of Indian Penal Code.

49. Both the appellants are sentenced to suffer rigorous

imprisonment for seven (7) years each and also to pay a fine of

Rs. 5,000/- each in default further to suffer rigorous

imprisonment for one (1) year each for the offence punishable

under Section 363/34 of the Indian Penal Code.

50. Both the Appellants are sentenced to suffer rigorous

imprisonment for three (3) years each for the offence punishable

under Section 379/411/344 of the Indian Penal Code.

51. All the aforesaid sentences shall run concurrently.

52. Issue modified jail warrant against appellant at once in the

name of the Superintendant of Correctional Home where the

appellants are lodged.

53. Let a copy of this judgment and order be communicated to the Ld. Trial Judge, forthwith. Trial Court records be submitted forthwith.

54. All pending applications, if any, stand disposed of accordingly.

55. All parties shall act on the server copies of this judgment duly downloaded from the official website of this Court.

56. Urgent Photostat certified copy of this order, if applied for, be supplied expeditiously after complying with all necessary legal formalities.

[BIBHAS RANJAN DE, J.]

57. I Agree.

[DEBANGSU BASAK, J.]