State Of West Bengal vs Sovan Sarkar
2023 Latest Caselaw 1967 Cal

                                    1

                   THE HIGH COURT AT CALCUTTA
                Criminal Miscellaneous Jurisdiction
                            Appellate Side
Present:

The Hon'ble Justice Debangsu Basak

             And

The Hon'ble Justice Md. Shabbar Rashidi



                                DR 2 of 2022
                            State of West Bengal
                                        Vs.
                                Sovan Sarkar


     For the Appellants      : Mr. Arindam Sen, Adv.
                               Mr. Sagnik Bhattacharya, Adv.
                               Md. Sahinurzaman, Adv.
                               Mr. Rishav Gupta, Adv.

     For the State           : Mr. Rudradipta Nandy, Ld. APP
                               Ms. Sonali Das, Adv.

     Hearing Concluded on    : February 28, 2023
     Judgement on            : March 24, 2023


   DEBANGSU BASAK, J.:-

   1.

This death reference has arisen from the judgement of

conviction dated July 28, 2022 and the order of sentence

dated August 1, 2022 passed by the learned Additional

Sessions Judge, 15th Court, Alipore, 24 Parganas South in

Sessions Trial No. 01 (09) 2014.

2. By the impugned judgement of conviction dated July

28, 2022, the learned judge has found the accused to be

guilty of murder and causing disappearance of evidence of

murder. By the impugned order of sentence, the learned

judge has awarded a sentence of death to the convict for the

offence of murder under Section 302 of the Indian Penal

Code, 1860. The learned judge has sentenced the convict to

rigourous imprisonment for 7 years and to pay a fine of Rs.

25,000 and in default for the simple imprisonment for 6

months for the offence punishable under Section 201 of the

Indian Penal Code, 1860.

3. Prosecution witness (PW) No. 1 had lodged a written

complaint with the police on July 16, 2013. Police had

registered a First Information Report dated July 16, 2013

with regard to the complaint of PW 1. Police had submitted

a charge sheet on the conclusion of the investigation.

4. The case of the prosecution at the trial had been that,

the convict murdered his parents and caused certain

evidence of such offence to disappear with the intention to

save himself from legal punishment in between 21:00 hours

of July 15, 2013 and 8:30 hours of July 16, 2013 at 161,

Talpukur Road, Kolkata 700061.

5. Charges against the convicted had been framed on

September 2, 2014 under Sections 302/201 of the Indian

Penal Code, 1860. The convict had pleaded not guilty and

claimed to be tried.

6. At the trial, the prosecution had relied upon 16

witnesses and various documentary and material evidences

to prove the charges as against the convict. On conclusion

of the evidence of the prosecution, the convict had been

examined under Section 313 of the Criminal Procedure

Code when the convict pleaded to be not guilty.

7. Learned advocate appearing for the convict has

submitted that, the case of the prosecution was based upon

circumstantial evidence. The prosecution had failed to

examine any eyewitness to the crime. According to him, the

prosecution had failed to complete the chain of evidence for

the case of the prosecution. He has pointed out that, no

bloodstain had been found from the wearing apparel of the

convict. He has pointed out that, although, both the victims

were fit and active, the prosecution did not show that, the

victim had put up any resistance to prevent the convict from

committing the crime.

8. Learned advocate appearing for the convict has

submitted that, the dead bodies of the victims were not

identified by any of the relatives or the local people. The

alleged offending weapon had been seized from the place of

occurrence but there was no identification mark put on

such alleged offending weapon. He has referred to the report

of the Serologist and submitted that, the so-called blood on

the alleged offending weapon had already disintegrated and

that the blood group could not be detected.

9. Learned advocate appearing for the convict has

submitted that, although, two labourers were said to be

present in the vicinity of the alleged place of occurrence, but

they were not arrested by the police although, it is the claim

of the prosecution that, such labourers were hired by the

convict.

10. Learned advocate appearing for the convict has

referred to the deposition of the prosecution witnesses and

submitted that, none of the prosecution witnesses proved

any of the charges as against the convict beyond reasonable

doubt.

11. Learned advocate appearing for the convict has

submitted that, the convict, during his examination under

Section 313 of the Criminal Procedure Code denied all facts

and circumstances alleged by the prosecution.

12. Learned advocate appearing for the convict has relied

upon 2000 Volume 6 Supreme Court Cases 286 (Vaasa

Chandrashekar Rao versus Ponna Satyanarayana and

another), 2009 Volume 12 Supreme Court Cases 603

(Ramesh Bhai and another versus State of Rajasthan),

2022 SCC Online TS 311 (Janapally Anjilaiah versus

State of Andhra Pradesh) on the proposition as to when a

conviction can be based on circumstantial evidence.

Learned advocate appearing for the convict has also relied

upon 2008 Volume 9 Supreme Court Cases 674 (State of

Andhra Pradesh versus P Satyanarayana Murthy) on

the aspect of extra-judicial confessional statement.

13. Learned advocate appearing for the State has

submitted that, the prosecution was able to prove the

charges as against the convict beyond reasonable doubt.

Evidence of prosecution witnesses has been referred to and

it was contended that, the convict was seen with his

deceased parents after the incident in a locked room by PW

1, PW 2, PW 3, PW 4, PW 5, PW 6, and PW 8. PW 1 had

stated that the relationship between the convict and his

parents was not good. PW 3 had stated that, the convict

made a confessional statement that his parents used to

disturb him which proved the intention of the convict to

commit such a heinous offence.

14. Learned advocate appearing for the State has pointed

out the nature of injuries that the victims had suffered in

the hands of the convict by a sharp cutting weapon. In the

case of the mother of the convict, the injury was caused

from behind and in the case of the father of the convict, the

injury had been caused from the front. In the case of the

father of the convict, apart from various incised wounds, he

had injuries on the right thumb and right index finger. In

both the cases the death had been caused due to the effects

of homicidal cutthroat injury as would appear from the

evidence of the post-mortem Doctor, PW 12.

15. Learned advocate appearing for the State has

submitted that, the convict, with the intention to kill his

parents, inflicted assault on vital parts of the body, being

fully aware about the consequence of such assault and that

the prosecution has proved the case beyond reasonable

doubt. The brutal nature of the crime was shocking and

definitely came under the bracket of rarest of rare case

where the parents had been brutally murdered by their son.

Therefore, the death reference should be answered by

upholding the penalty of death as had been awarded by the

learned Trial Judge.

16. PW 1 had stated that, he was an auto driver. He had

known both the victims. On July 16, 2013, the convict was

digging a ditch with 2 labourers. While he had gone there

and found the doors and windows of the house to be bolted

from inside and nobody responded to his calls and as such

he had thought that something had happened. Thereafter,

he had called the neighbours. At that time, the convict came

out from the room by opening the door and when they had

entered the house and found the victims were lying on the

ground and their bodies were covered with a cloth.

Thereafter, on being informed, police had come and looked

into everything and removed the cloth and found both the

victims to be beheaded and in a dead condition. The convict

had told everybody that he killed them with the help of a

sharp cutting weapon. He had killed his mother in the room

situated on the roof and also killed his father while he was

viewing television.

17. PW 1 had identified the convict in court. He had said

that, except the victims, who were parents of the convict, no

other person was residing at that place. The elder brother of

the convict was residing at Delhi with his family members.

The victims had a daughter who was residing at a different

place.

18. PW 1 had identified the written complaint and his

signature thereon which were marked as Exhibit 1 and 1/1.

He had stated that, the police seized the sharp cutting

weapon and various other articles including the garments of

the victims under different seizure list. It had taken 3 to 4

hours to seize the articles and complete other formalities.

He had identified his signatures on the 2 seizure list

containing 4 signatures in 4 pages. Such signatures had

been marked as Exhibit 2, 2/1, 2/2 and 2/3.

19. PW 1 had stated that the police took the bodies of the

2 victims to the hospital. On receiving the information, the

elder brother and sister of the convict had come at the place

of occurrence. The elder son had come in the night of the

following day.

20. In cross-examination, PW 1 had stated that, he usually

kept his auto in the house of the victims at about 10 PM to

11 PM. At about 10:30 PM on July 15, 2013 he did not get

any notice about the occurrence of the incident. He had no

idea about the incident prior to July 16, 2013. He had

stated that, the offending weapon had been handed over to

the police by the convict himself.

21. The son-in-law of the victims had deposed as PW 2. He

had stated that, the convict was his younger brother-in-law.

He had stated that PW 1 was an auto driver. During

afternoon when he was taking rest and reading newspaper

at his house, PW 1 had told him that when PW 1 went to the

house of the victims for keeping his auto, he noticed 2

rooms, one of the father-in-law and the other of the mother-

in-law to be locked from outside and the ceiling fans in both

the rooms to be running. PW 1 had asked the convict about

the same when the convict told PW 1 that both his parents

had left for Bardhaman for a visit.

22. PW 2 had stated that, on hearing such information, he

along with his wife and daughter went to his in-laws house

by rickshaw. On reaching there, he had noticed that 2

persons were digging the earth. On a query, such questions

are answered that they were doing so for implanting trees.

He had not found anything around the house about

plantation of the trees. He had suddenly noticed the convict

entering into the house whereupon, he locked the convict

from outside and called on police. After arrival of the police,

he had handed over the key of the house to them. After

opening the lock, police had entered into the house and

found the convict along with some articles such as sharp

cutting weapon. They had found the dead body of the

victims. Police had taken away the convict after arresting

him. Police had sent the dead bodies of the parent in-laws

for post-mortem.

23. PW 2 had stated that he had seen the dead body of his

father-in-law lying with the cut throat injury along with

other injuries on the back and hand. He had also seen the

dead body of his mother-in-law lying with cut injury on the

neck. Both the dead bodies had been lying within the room

with the ceiling fan running. He had stated that, there was

good relationship between the convict and his parents like

others. He had no knowledge about the reason why the

convict killed his parents. He had identified the convict in

court.

24. The younger brother of PW 2 had deposed as PW 3. He

had stated that, on July 16, 2013 at about 7:30 to 7:45

after receiving a phone call from PW 2, he went to the in-

laws house of PW 2 and found that the convict had been

moving in and around in that house. In answer to a query,

the convict had told him that his parents went for a tour of

North Bengal. They had informed the police. Police had

arrived. PW 3 had asked the convict as to why he killed his

parents. In reply to that, the convict had answered that his

parents were disturbing him. Thereafter, the police had

unlocked the padlock of the ground floor and after entering

into that room, he notice that both the parents of the

convict had been lying on the floor surface side-by-side with

their hands and legs tied in a knot. He had also noticed one

ditch within the house outside the room. He had not seen

the digging of the ditch. He had identified the convict in

court.

25. PW 3 had stated that, police had examined him at the

place of occurrence. One sharp cutting weapon with wooden

handle had been recovered by the police from the room.

Such sharp cutting weapon had been seized by the police

along with one T-shirt. Police had prepared a seizure list on

that date. He had identified his signature on the seizure list

which was marked as Exhibit 3. PW 3 had on re-

examination identified the seized articles in court.

26. A neighbour of the convict had deposed as PW 4. He

had stated that on July 16, 2013 after being informed by

PW 1 about missing wife of the victim, on the previous day,

he had rushed to the house of the convict. After reaching

the place he had seen through the Veranda some black spot

along with tuft of hair on the staircase up to the gate. He

had also seen one bloodspot along with tuft of hair on one

corner of curtain at the landing of the staircase on the

ground floor. After much query when the convict had come

out and responded to the window of one of the ground floor

rooms, the convict had said that his parents had left for

North Bengal to visit their relatives place. After hearing that,

he along with PW 1 and other local people had pressurised

the convict to state about the exact whereabouts of his

parents. After that, ultimately the convict had confessed

that he had killed his parents. After hearing that, PW 2 had

informed the police over telephone. After arrival of the

police, they had managed to enter into the house through

the backside passage since front side passage was under

lock and key and in spite of several requests, the convict did

not unlock the padlock of the front passage. When the

police had entered the house, the convict came out from the

room. After that they had entered into the room along with

the police and found 2 dead bodies of the victims lying

covered with bed cover and that there were many bloods

spot all around the room. He had noticed one ditch of 6 feet

into 4 feet with four feet depth approximately outside but

within the premises. He had been interrogated by the police.

He had stated that the convict committed the offence of

killing his parents with the consideration that the convict

would be deprived of his father's property as his father may

be giving it to his elder brother and elder sister. He had

identified the appellant in court.

27. A passer-by had deposed as PW 5. He had stated that,

when he was passing through the residence of the convict

after his work, he noticed a huge gathering of police, local

people and press media. After noticing the same, he had

enquired about the incident. He had heard about the

murder from a person whose name he could not recollect at

the trial. He had stated that, during his presence, he

noticed that the main gate of the house was closed from

inside and that police personnel were shouting for opening

the gate. After staying there for a short span of time, he had

left the place. At the time of leaving the place one police

officer took his name and address along with 23 other

persons who had assembled there. Since then he had never

been enquired or examined by the police. After that date, for

the first time he had come to the court being summoned by

the court.

28. At this stage, PW 5 had been declared hostile by the

prosecution. On cross examination by the prosecution, he

had denied the suggestions put to him by the prosecution.

29. PW 6 had claimed that he went to the place of

occurrence finding a large number of people to be

assembled there, while he was going for his job. Police had

taken his name and address. He did not add any substance

to the case of the prosecution. The defence had declined to

cross-examine him.

30. One of the labourers who was digging the ditch at the

residence of the convict had deposed as PW 7. He had

stated that, he and another person were engaged by the

convict for digging the earth within the compound of the

house of the convict with the promise of a sum of Rs. 800 to

both of them at the rate of Rs. 400 each. When they had

been digging the earth within the compound of the house,

one female person entered into the house coming from

outside enquired as to the effect that who had engaged them

and for what purpose. In reply to that, they had answer to

her that the convict engaged them to do the digging.

Thereafter, that female person had left the house. After her

departure, few persons had started to enter the house.

Seeing that, they had stopped the work and sat down there.

Thereafter, police had interrogated them when they said

about the details of their engagement and their work within

the compound of the house. After shouting and activities by

the police within the compound of that house, the convict

had come out from inside the house. Police had interrogated

the convict. He had identified the convict as the person who

had engaged them for digging the earth within the

compound and who had come out from inside the house

due to the shouting of the police personnel assembled there.

31. The daughter of the victims and the sister of the

convict had deposed as PW 8. She had stated that, on July

16, 2013 at about 7 to 7:30 AM, PW 1 came to her place

and informed her about the lock and key condition of the

room of her parents and one ditch being in existence within

the boundary of their house. After getting that information,

she had gone to her paternal house with her husband,

daughter and PW 1. They had noticed that the house was

under lock and key and that there was a ditch being dug. At

that time, the convict was within the room of that house.

Her husband had blocked it from outside. The room of her

parents had been under lock and key from outside even

before the arrival at the place. After reaching the place, her

husband had informed the police of the local police station.

Police after arrival had unlocked the padlock of the main

entrance of the house as well as the room inside. After

opening the door they had come to know that her parents

were dead. On a query of the police, the convict had

admitted to them that he committed the murder of their

parents. She had identified the convict in court.

32. A police constable who had taken the photographs on

July 16, 2013 had deposed as PW 9. He had produced 14

photographs along with the negatives of such photographs

in court. Such photographs had been marked as material

exhibits at the trial.

33. The police personnel who had prepared the sketch

map of the place of occurrence had deposed as PW 10. He

had stated that, he had prepared a rough sketch map which

was attended in evidence and marked as exhibit 4 and his

signature was marked as exhibit 4/1. On July 21, 2013, he

had prepared a computerised final plan of the premises and

its surroundings on the basis of the rough sketch map. He

had tendered such computerised final plan of the place of

occurrence as Exhibit 5 and his signature was marked as

Exhibit 5/1.

34. The doctor who had examined both the victims for the

first time deposed as PW 11. She had stated that she found

both the victims to be brought dead. She had tendered the

injury report of the female victim as Exhibit 6 and that of

the male victim as Exhibit 7. She had also examined the

convict and found a cut mark injury on his left palm. She

had tendered the injury report of the convict which was

marked as Exhibit 8.

35. The doctor who had performed the post-mortem on the

dead bodies of the victims had deposed as PW 12. He had

narrated the injuries that he found on the body of the male

victim. He had opined that the death of the male victim was

due to the effects of homicidal cut throat injury caused by

sharp cutting heavy weapon and antemortem in nature. He

had tendered the post-mortem report of the male victim

which was marked as Exhibit 9. He had narrated the

injuries that he found on the dead body of the female victim.

He had opined that the death of the female victim was due

to the effects of homicidal cutthroat injury. He had tendered

the post-mortem report of the female victim which was

marked as Exhibit 10.

36. An acquaintance of the victims had deposed as PW 13.

He had stated that on getting information about digging of a

ditch at the residence of the victim he had gone there and

found a ditch there. He had found the presence of PW 2 and

PW 8 of the convict and many other people including PW 1

PW 3 and PW 4. After the arrival of the police personnel at

the premises when summoned by the police, he had entered

inside the house along with the police. He had noticed 2

dead bodies lying within the house. He had identified his

signature on the two seizure lists dated July 16, 2013. He

had identified the appellant in court although could not

recollect his name.

37. The police personnel who had performed the inquest of

the dead bodies of the victims had deposed as PW 14. He

had tendered the inquest report of the male victim as

Exhibit 11 and that of the female victim as Exhibit 12 in

evidence.

38. Another seizure list witness had deposed as PW 15. He

had identified the seized articles in court. He had identified

the appellant in court.

39. The police personnel who had received telephonic

information from PW 1 about the incident had deposed as

PW 16. He had stated that, he lodged a general diary being

GD entry No. 1715 dated July 16, 2013. Such GD entry had

been tendered in evidence and marked as Exhibit 13. He

had stated that after leaving the Police Station he went to

the place of occurrence, and after he returning to the police

station he lodged another general diary entry being No.

1768 dated July 17, 2013 at 16:05 hours. Such GD entry

had been tendered in evidence and marked as Exhibit 14.

He had narrated the conduct of the police subsequent to the

first GD entry and the happenings at the place of

occurrence. He had stated that, after arrival at the place of

occurrence, PW 1 came to them and narrated the incident

which he had recorded. He had written such narration in

Bengali in separate pages. Such recorded statement of PW 1

had been treated as the written complaint. The contents of

the written complaint had been read over and explained to

PW 1 and after understanding the same, PW 1 put his

signature on 2 separate pages. After receiving the written

complaint and after conducting part of investigations at the

place of occurrence he had returned to the police station. He

prepared the formal First Information Report by his own

hand under the order of the officer in charge.

40. PW 16 had been entrusted with the charge of

investigation in respect of the police case. He had narrated

about the course of his investigations. He had identified the

seized articles in court. He had collected the information

sent by the hospital in respect of the death of the victims.

Such information had been tendered and marked as Exhibit

16 and 17. He had stated that after arresting the convict, he

got medically examined. The consent form for medico legal

examination had been tendered in evidence and marked as

Exhibit 18. The medical examination report of the convict

had been tendered in evidence and marked as Exhibit 19.

He had collected the report from the forensic science

laboratory which was tendered and marked as Exhibit 20 on

consent. On completion of the investigation he had

submitted the charge sheet on October 6, 2013 against the

convict. He had identified the convict in court. In cross-

examination, he had stated that, he had seized the sharp

cutting weapon with the assistance of the convict from the

projection from the inside wall of the room on which the

articles were kept of the room of the convict.

41. On the completion of the evidence of the prosecution,

the convict had been examined under Section 313 of the

Criminal Procedure Code. He had denied the knowledge of

the incriminating materials as against him. He had declined

to adduce any defence witness.

42. Two persons had been found dead on July 16, 2013 at

premises No. 161, Talpukur Road, Kolkata 700061. Such

persons had been identified as the parents of the convict.

Post-mortem of the two dead bodies had been performed by

PW 12. PW 12 had tendered the post-mortem report of the

dead body of the father of the convict as Exhibit 9. He had

noted 11 injuries on such dead body. He had tabulated the

injuries noted on the dead body of the father of the convict

in Exhibit 9. He had opined that the death of the father of

the convict was due to the effects of homicidal cutthroat

injury caused by sharp cutting heavy weapon and

antemortem in nature.

43. So far as the post-mortem on the dead body of the

mother of the convict is concerned, PW 12 had conducted

the post-mortem and tendered the report as Exhibit 10. He

had tabulated 6 injuries that he had found on the dead

body of the mother of the convict. He had opined that, the

death of the mother of the convict was due to the effect of

homicidal cutthroat injury.

44. Therefore, the prosecution had established

conclusively that, both the deceased were murdered.

45. Vasa Chandrashekar Rao (supra) has held that,

where the prosecution wants to prove the guilt of the

accused by circumstantial evidence, it is necessary to

establish that the circumstances from which a conclusion is

drawn, should be fully proved; the circumstances should be

conclusive in nature; all the facts established should be

consistent only with the hypothesis of guilt and inconsistent

with innocence; and the circumstances should exclude the

possibility of guilt of any person other than the accused. In

order to justify any furtherance of guilt, the circumstances

from which such an inference is sought to be drawn, must

be incompatible with the innocence of the accused. The

community for effect of the circumstances must be such as

to negate the innocence of the accused and to bring home

the offence beyond any reasonable doubt.

46. Ramesh Bhai (supra) has held that the onus was on

the prosecution to prove that the chain is complete and the

infirmity of lacuna in the prosecution cannot be cured by a

false defence or plea. It has noticed 1984 Volume 4

Supreme Court Cases 116 (Sharad Birdhichand Sarda

versus State of Maharashtra).

47. Janapally Anjilaiah (supra) has noticed the

authorities of the Supreme Court on circumstantial

evidence and in the facts and circumstances of such case,

found the case of the prosecution not being proved.

48. PW 1 had found a ditch being dug at the premises by 2

labourers. He had found the doors and windows of the

house to be locked from inside and nobody responding to

his calls. He had called the neighbours thinking that

something was foul. PW 2 had arrived at the place of

occurrence and locked the convict from outside. He had

called the police. PW 3 and PW 8 had also been present

when the police unlocked the padlock of the ground floor

and entered into the premises. All along the convict had

been present inside the building. He had responded to the

calls of the prosecution witnesses giving out that, the

deceased were not available inside the building having gone

somewhere else.

49. Prosecution had also established that, the convict was

found with the dead bodies of his parents at the place of

occurrence. PW 1, PW 2, PW 3 and PW 8 had corroborated

each other and stated that, the convict was present at the

place of occurrence along with the 2 dead bodies of his

parents. Prosecution had established that, no other family

members other than the convict and his parents used to

reside at the premises from where the dead bodies had been

recovered, at the material point of time.

50. The convict in his examination under Section 313 of

the Criminal Procedure Code did not offer any explanation

as to how his parents came to be murdered at the premises

at which they usually resided.

51. PW 1, PW 2 PW 3 and PW 8 had stated that, the

convict made confessional statements as to his guilt to them

and to the police. According to them, the convict had

admitted that he murdered his parents. The convict had

shown the murder weapon to the police upon which, the

police seized the same.

52. In P Satyanarayana Murthy (supra) the Supreme

Court has reversed the judgement of acquittal of the High

Court and restored the judgement of conviction of the Trial

Court observing that, the claim of the accused that the bribe

was forced onto his hands, made in the statement under

Section 313 of the Criminal Procedure Code was

unacceptable. The facts and circumstances of the present

case are different. The confessional statements had been

made by the convict at the place of occurrence prior to the

police arriving and before the police also.

53. It has also come in evidence that the convict had

moved the dead bodies after committing the murder. The

convict had engaged 2 labourers for the purpose of digging a

ditch.

54. On the conspectus of the facts established at the trial

by the prosecution, it has to be held that, the prosecution

proved conclusively that, the parents of the convict had

been murdered by the convict. The convict had caused and

attempted to cause disappearance of the evidences of the

murder. Therefore, the learned Trial Judge had correctly

held the convict to be guilty of murder and causing

disappearance of the evidence of his crime.

55. The convict is guilty of murder of both of his parents.

He murdered both the parents by a sharp cutting weapon.

The victims had suffered multiple injuries at the hands of

the convict. The father of the convict died due to cutthroat

injury. The mother of the convicted had died due to the

injuries suffered by her. The learned Trial Judge has

awarded death penalty to the convict for the murder of his

parents.

56. The quantum of sentence that the learned Trial Judge

had awarded requires consideration. The learned Trial

Judge had drawn up a balance sheet of the mitigating and

aggravating circumstances governing the convict and

arrived at the finding that, the aggravating circumstances

outweighed the mitigating circumstances in favour of the

convict. The learned Trial Judge had also observed that, the

crime was of the rarest of rare case.

57. It would be apposite to take into consideration the

pronouncement of the Supreme Court with regard to death

penalty as reported in 2023 Volume 2 Supreme Court

Cases 383 (Manoj and Others vs. State of Madhya

Pradesh). It has reviewed various authorities on the subject

of death penalty and the criteria with regard to the award

thereof. It was observed that, the Supreme Court laid down

a two-step process to determine whether an accused

deserves the death penalty or not. A Court has to decide

firstly, that the case belongs to the rarest of rare category

and secondly, that the option of life imprisonment would

simply not suffice. For the first step, the aggravating and

mitigating circumstances would have to be considered

equally. For the second test the Court has to considerer

whether the alternative of life imprisonment was

unquestionably foreclosed as the sentencing aim of

reformation was unachievable, for which the State must

provide material.

58. Manoj and Others (supra) has noted that the

Supreme Court in 2013 Volume 5 Supreme Court Cases

546 (Shankar Kisanrao Khade vs. State of

Maharashtra) developed yet another framework of the

crime test, criminal test and the rarest of rare test. It has

noted paragraph 52 of Shankar Kisanrao Khade (supra)

which is as follows:-

"52. Aggravating circumstances as pointed out above, of course, are not exhaustive so also the mitigating circumstances. In my considered view, the tests that we have to apply, while awarding death sentence are

"crime test", "criminal test" and the "R-R test" and not the "balancing test". To award death sentence, the "crime test" has to be fully satisfied, that is, 100% and "criminal test" 0%, that is, no mitigating circumstance favouring the accused. If there is any circumstance favouring the accused, like lack of intention to commit the crime, possibility of reformation, young age of the accused, not a menace to the society, no previous track record, etc. the "criminal test" may favour the accused to avoid the capital punishment. Even if both the tests are satisfied, that is, the aggravating circumstances to the fullest extent and no mitigating circumstances favouring the accused, still we have to apply finally the rarest of the rare case test (R-R test). R-R test depends upon the perception of the society that is "society- centric" and not "Judge-centric", that is, whether the society will approve the awarding of death sentence to certain types of crimes or not. While applying that test, the court has to look into variety of factors like society's abhorrence, extreme indignation and antipathy to certain types of crimes like sexual assault and murder of intellectually challenged minor girls, suffering from physical disability, old and infirm women with those disabilities, etc. Examples are only illustrative and not exhaustive. The courts award death sentence since situation demands so, due to constitutional compulsion, reflected by the will of the people and not the will of the Judges."

59. While considering a crime where death penalty is

prescribed, a Court has to find out as to whether life

imprisonment as a sentence was completely ruled out. It

has to apply the crime test, criminal test and the rarest of

rare test. It has to arrive at a finding that the aggravating

circumstances were 100 per cent and that there were no

mitigating circumstances in favour of the accused. If there

is any mitigating circumstances in favour of the accused

then, award of death penalty should not be awarded. Even if

it is found in a given case that, there are aggravating

circumstances to the fullest extent and that there is no

mitigating circumstance in favour of the accused, then also,

the rarest of rare test has to be satisfied. Rarest of rare test

does not depend upon the perception of the Judge but of the

society.

60. Manoj and Others (supra) has noted that, mitigating

factors play an important role in deciding whether the

punishment should be death penalty or a life imprisonment.

It has observed as follows :-

"204. 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 Singh [Bachan Singh v. State of Punjab, (1980) 2 SCC 684, para 206 : 1980 SCC (Cri) 580] itself : (SCC p. 750, para 206) "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."

These are hardly exhaustive; subsequently, this Court in several judgments has recognised, and considered commutation to life imprisonment, on grounds such as young age [Mahesh Dhanaji Shinde v. State of Maharashtra, (2014) 4 SCC 292 : (2014) 2 SCC (Cri) 321; Gurvail Singh v. State of Punjab, (2013) 2 SCC 713 : (2013) 2 SCC (Cri) 864] , socio-economic conditions [Mulla v. State of U.P., (2010) 3 SCC 508 : (2010) 2 SCC (Cri) 1150; Kamleshwar Paswan v. State (UT of Chandigarh), (2011) 11 SCC 564 : (2011) 3 SCC (Cri) 409; Sunil Damodar Gaikwad v. State of Maharashtra, (2014) 1 SCC 129 : (2013) 4 SCC (Cri) 83] , mental illness [Shatrughan Chauhan v. Union of India, (2014) 3 SCC 1 : (2014) 2 SCC (Cri) 1] , criminal antecedents

[Dilip Premnarayan Tiwari v. State of Maharashtra, (2010) 1 SCC 775 : (2010) 1 SCC (Cri) 925] , as relevant indicators on the questions of sentence. Many of these factors reflect demonstrable ability or merely the possibility even, of the accused to reform [i.e. (3) and (4) of the Bachan Singh [Bachan Singh v. State of Punjab, (1980) 2 SCC 684 : 1980 SCC (Cri) 580] list], which make them important indicators when it comes to sentencing."

61. Manoj and Others (supra) has noted that the

Supreme Court in 1980 Volume 2 Supreme Court Cases

684 (Bachan Singh vs. State of Punjab) has noted Section

235(2) of the Code of Criminal Procedure and also noted the

fact that, sentencing contemplated under Section 235(2) of

the Criminal Procedure Code was not confined merely to

oral hearing but intended to afford a real opportunity to the

prosecution as well as the accused to place on record facts

and materials relating to various factors on question of

sentence.

62. Manoj and Others (supra) has noted the constraints

of an accused to bring forth the mitigating circumstances. It

has observed that various authorities of the Supreme Court

require the State to place the mitigating circumstances

before the Court. It has issued practical guidelines to collect

mitigating circumstances. It has observed as follows :-

"214. 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 [Bachan Singh v. State of Punjab, (1980) 2 SCC 684 : 1980 SCC (Cri) 580] . 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.

215. 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. This information should mandatorily be available to the trial court, at the sentencing stage. The accused too, should be given the same opportunity to produce evidence in rebuttal, towards establishing all mitigating circumstances.

216. Lastly, information regarding the accused's jail conduct and behaviour, work done (if any), activities the accused has involved themselves in, and other related details should be called for in the form of a report from the relevant jail authorities (i.e. Probation and Welfare Officer, Superintendent of Jail, etc.). If the appeal is heard after a long hiatus from the trial court's conviction, or High Court's confirmation, as the case may be -- a fresh report (rather than the one used by the previous court) from the jail authorities is recommended, for a more exact and complete understanding of the contemporaneous progress made by the accused, in the time elapsed. The jail authorities must also include a fresh psychiatric and psychological report which will further evidence the reformative progress, and reveal post-conviction mental illness, if any.

217. It is pertinent to point out that this Court in Anil v. State of Maharashtra [Anil v. State of Maharashtra, (2014) 4 SCC 69 : (2014) 2 SCC (Cri) 266] has in fact directed criminal courts to call for additional material : (SCC p. 86, para 33) "33. ... Many a times, while determining the sentence, the courts take it for granted, looking into the facts of a particular case, that the accused would be a menace to the society and there is no possibility of

reformation and rehabilitation, while it is the duty of the court to ascertain those factors, and the State is obliged to furnish materials for and against the possibility of reformation and rehabilitation of the accused. The facts, which the courts deal with, in a given case, cannot be the foundation for reaching such a conclusion, which, as already stated, calls for additional materials. We, therefore, direct that the criminal courts, while dealing with the offences like Section 302IPC, after conviction, may, in appropriate cases, call for a report to determine, whether the accused could be reformed or rehabilitated, which depends upon the facts and circumstances of each case."

(emphasis supplied) We hereby fully endorse and direct that this should be implemented uniformly, as further elaborated above, for conviction of offences that carry the possibility of death sentence."

63. The award of death penalty by the learned Trial Judge

has to be assessed on the parameters as has been noted in

Manoj and Others (supra).

64. In deciding as to whether the crime committed by the

convict fell within the criteria of rarest of rare cases or not,

learned Judge has taken into consideration the

pronouncement of the Supreme Court in AIR 1983

Supreme Court 957 (Machhi Singh and Others vs. State

of Punjab). The learned judge has noted that Machhi

Singh (supra) prescribes that where motive of commission

of murder evince total depravity and meanness, death

penalty can be awarded. He has taken into consideration an

instance of depravity and meanness, noted in Machhi

Singh (supra) to be a cold blooded murder with a deliberate

design in order to inherit property or to gain control over

property.

65. PW 2 is the son-in-law of the victims and had stated in

his examination-in-chief that there was a good relationship

between the convict and the parents of the convict like

others. He had stated that he was not aware of the reason

why the convict murdered his parents.

66. PW 4 who is a neighbour had stated that, the victim

committed the offence with the consideration that he would

be deprived of his father's property as his father may be

giving it away to the elder brother and elder sister of the

victim. Learned Trial Judge had held that the convict

committed the crime for property.

67. Elder sister of the victim had deposed as PW 8. She did

not allude to any motive for the convict to murder his

parents. She did not claim that the convict had murdered

his parents for property.

68. Therefore, in our view, it would be improper to hold

that, the victim had murdered his parents with a deliberate

design in order to inherit property or to gain control over a

property. Moreover, it has not come out in evidence that, the

convict was in a position to dominate the victims. Nothing

has been placed on record to suggest, let alone establish

that, the convict had stood benefitted by the murder of his

parents property wise or financially.

69. In such circumstances, we are unable to classify the

crime as one falling within the rarest of rare category on the

basis of the instance noted in Machhi Singh (supra) and as

alluded to by the learned Trial Judge.

70. The learned Trial Judge in the impugned order of

sentence stated August 1, 2022 has recorded that, a report

from the Superintendent, Dum Dum Correctional Home and

of Superintendent of Pavlov Hospital, Kolkata were

considered. He has recorded that, from the report of the

medical board constituted by the Superintendent of Pavlov

Hospital, Kolkata, it appeared that the mental state

examination and psychometric assessment was done by

clinical psychologist and the report suggested that the

possibility of committing future crime and to become danger

to society could not be ruled out.

71. The convict had been examined under Section 313 of

the Criminal Procedure Code on April 20, 2022 when he

claimed that he was 47 years of age. The incident had

occurred on July 16, 2013 when he was about 36 years of

age going by his claim as to his age on the date of his

examination under Section 313 of the Criminal Procedure

Code. Age of the convict at the time of the commission of the

offence is a factor that has to be taken into consideration

while drawing up the balance sheet of mitigating and

aggravating circumstances.

72. By an order dated February 16, 2023, we had called

upon the State to submit a report as to the conduct of the

convict subsequent to the judgement of conviction. State

was directed to place materials on record if any,

necessitating confirmation of the death penalty awarded

against the convict.

73. Pursuant to such order dated February 16, 2023, State

submitted a report dated February 27, 2023 which was

taken on record by the order of February 27, 2023. The

report dated February 27, 2023 stated that the behaviour of

the convict was submissive and co-operative. The

Superintendent of the Correctional Home where the convict

was lodged stated that, he found no objection from the

conduct of the convict during his stay in the Correctional

Home from any corner. He had stated that, it was reported

by the Welfare Officer that the convict was very much

interested to draw picture and the Correctional Home

Authorities inspired him to do so. He had referred to the

report of the clinical psychologist with regard to the convict.

74. It appears that the clinical psychologist of the

Correctional Home where, the convict was lodged, submitted

a report dated January 13, 2023 to the Superintendent of

such Correctional Home. In such report, it had been stated

that, no active psychopathology nor any symptom of anxiety

or depression was found at present. Convict had appeared

to be mentally fit at present and has the awareness about

his future legal movement.

75. The report of the clinical psychologist dated January

13, 2023 and the statement of the convict recorded under

Section 313 of the Criminal Procedure Code states that the

convict was an Auto driver prior to the incident. His age and

his economic condition deduced from his occupation as

noted above, has to be considered as mitigating factors in

his favour. His conduct subsequent to his arrest is another

factor which has to be considered as a mitigating

circumstance in favour of the convict. State has not

produced any material establishing any criminal antecedent

so far as the convict is concerned. Again the same has to be

taken as a mitigating circumstance in favour of the convict.

Furthermore, the last clinical examination report dated

January 13, 2023 has not ruled out the possibility of

awarding life imprisonment.

76. In such circumstances, we commute the death penalty

awarded to the convict to one of life imprisonment. However,

the principles enunciated in 2016 Volume 7 Supreme

Court Cases 1 (Union of Indian vs. V. Sriharan @

Murugan and Others) should be applied. V. Sriharan

(supra) has held that, the power to impose a modified

punishment providing for specific term of incarceration or

till the end of the convict's life as an alternate to death

penalty, can be exercised only by the High Court and the

Supreme Court and not any other inferior Court.

77. The Constitutional Court can award a life sentence

without any remission. This aspect has to be considered in

light of the report of Pavlov Hospital taken note of by the

learned Trial Judge where, such hospital had done

psychometric assessment of the convict by clinical

psychologist who reported that there was a possibility of the

convict committing future crime and becoming a danger to

the society.

78. In view of such report, it would be appropriate to direct

that the life sentence awarded to the convict shall be

without remission for the entirety of the natural life of the

convict.

79. DR 2 of 2022 is disposed of accordingly.

80. Trial Court records along with a copy of this judgement

and order be remitted to the appropriate court forthwith for

necessary steps.

81. A copy of this judgement along with the Trial Court

records be remitted to the appropriate Court forthwith. In

view of the commutation of the death penalty of Shovan

Sarkar, any warrant issued by the appropriate Court with

regard thereto in respect of Shovan Sarkar stands modified

in terms of this judgement and order. Department will

inform the Correctional Home, where the appellant is

lodged, as to this judgement and order. The Correctional

Home will record the fact of commutation of death penalty

to the sentence awarded by this judgement and order in

respect of Shovan Sarkar, in their records.

82. Urgent Photostat certified copy of this judgement and

order, if applied for, be supplied expeditiously after

complying with all necessary legal formalities.

[DEBANGSU BASAK, J.]

83. I agree.

[MD. SHABBAR RASHIDI, J]