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SUPREME COURT OF INDIA
(BEFORE DR A.S. ANAND AND N.P. SINGH, JJ.)
DHANANJOY CHATTERJEE ALIAS DHANA
Versus
STATE OF W.B.
Criminal Appeal No. 584 of 1992 {From the Judgment and Order dated August 7, 1992 of the Calcutta High Court in Death Reference No. 3 of 1991}, decided on January 11, 1994
Advocates appeared
A.K. Ganguli, Senior Advocate (S.C. Ghosh and A.D. Sikri Advocates, with him) for the Appellant;
D.N. Mukherjee, Dilip Kumar Sinha and J.R. Das, Advocates, for the Respondent.
(ii) Sentence - Indian Penal Code, 1860. Sections 302, 376 and 380 - Conviction under. Young girl ort8 years had been subjected to rape before her murder - Dead body was found lying on the floor in her house. Her skirt and blouse had been pulled up - Her private parts and breasts were visible. Blood stains on her hands and vagina also - Marks of violence and blood on her face - Her torn panty was found lying near the entrance of the door - Accused, a security guard in the building - History of improper attitude of the accused towards the young girl and his teasing her often and seeking her company to go to a movie - Order of his transfer to another building on ground of his Improper behaviour - Cold blooded pre-planned murder - A rare of the rarest cases. Sentence of death confirmed.
Held, the measure of punishment in a given case must depend upon the atrocity of the crime, the conduct of the criminal and the defenceless and unprotected state of the victim. Imposition of appropriate punishment is the manner in which the courts respond to the societys cry for justice against the criminals. Justice demands that courts should impose punishment fitting to the crime so that the courts reflect public abhorrence of the crime. The Courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering imposition of appropriate punishment.
The sordid episode of the security guard, whose sacred duty was to ensure the protection and welfare of the inhabitants of the flats in the apartments. Should have subjected the deceased a resident of one of the flats, to gratify his lust and murder her in retaliation for his transfer on her complaint, makes the crime even more heinous. Keeping in view the medical evidence and the state in which the body of the deceased was found, it is obvious that a mostheinous type of barbaric rape and murder was committed on a helpless and defenceless school-going girl of 18 years. If the security guards behave in this manner, who will guard the guards? The faith of the society by such a barbaric act of the guard, gets totally shaken and its cry for justice becomes loud and clear. The offence was mot only inhuman, and barbaric but it was a totally ruthless crime of rape followed by cold blooded murder and an affront to the human dignity of the society. The savage nature of the crime has shocked our judicial conscious. There are no extenuating or mitigating circumstances whatsoever in the case. We agree that a real and abiding concern for the dignity of human life is required to be kept in mind by the courts while considering the confirmation of the sentence of death but a cold blooded preplanned brutal murder, without any provocation, after committing rape on an innocent and defenceless young girl of 18 years by the security guard certainly makes this case a "rare of the rarest" cases which call for no punishment other than the capital punishment and we accordingly confirm the sentence of death imposed upon the appellant for the offence under Section I.P.C. (Para 15)
(iii) Evidence - Circumstantial evidence - A case base on; - Consideration for the courts.
Held: It is settled law that in a case based on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn have not only to be fully established but also that all the circumstances so established should be of a conclusive nature and consistent only with the hypothesis of the guilt of the accused. Those circumstances should not be capable of being explained by any other hypothesis, except the guilt of the accused and the chain of the evidence must be so complete as not to leave any reasonable ground for the belief consistent with the innocence of the accused. It needs no reminder that legally established circumstances and not merely indignation of the court can form the basis of conviction and the more serious the crime, the greater should be the care taken to scrutinise the evidence lest suspicion takes the place of proof. Since, the instant case is based on circumstantial evidence and the sentence awarded by the trial court, and confirmed by the High Court is that of death. (Para 7)
(iv) First Information Report - Case of rape with murder in a house - Telephonic message sent to police station - Not a F.I.R. - Recording statement of P.W, 3, mother of the deceased to be treated as the First Information Report. (Para 9)
(v) Motive - Case, based on circumstantial evidence. Existence of motive assumes significance.
Held: In a case based on circumstantial evidence, the existence of motive answers significance though the absence of motive does not necessarily discredit .the prosecution case, if the case stands otherwise established by other conclusive circumstances and the chain of circumstantial evidence is so complete and is consistent only with the hypothesis of the guilt of the accused and inconsistent with the hypothesis of his innocence. In this case, there is ample evidence on the record to show that the appellant had a motive to commit the alleged crime and we are unable to agree with Mr. Ganguli that the motive for the appellant to commit the murder of the deceased has not been established. (Para 10)
(vi) Evidence - Hostile witness - Testimony of a witness not liable to be rejected without even scrutinising it - Great care and caution required to analyse the same before accepting any part of it. (Para 10)
(vii) Evidence - Statement made by an accused before the police - Inadmissible In evidence - Part of the statement which led to the discovery of an object, Is admissible In evidence. (Evidence Act 1872 - Ss. 25& 26) (Para 10)
(viii) Evidence - Abscondence by itself not a circumstance to the conclusion consistent with the guilt of the accused - The evidence warrants consideration and careful security. (Para 10)
(ix) Evidence - Plea of alibi, if raised, by an accused is required to be proved by him by cogent and satisfactory evidence. (Para 10)
(x) Criminal Justice - Sentencing - Violent crime against women - Criminal sentencing by the Courts is a subject of concern in such cases.
Held: In recent years, the rising crime rate -particularly violent crime against women has made the criminal sentencing by the courts a subject of concern. Today there are admitted disparities. Some criminals get very, harsh sentences while many receive grossly different sentence for an essentially equivalent crime and a shockingly large number even go unpunished thereby encouraging the criminal and in the ultimate making justice suffer by weaking the systems credibility. Of course, it is not possible to lay down any cut and dry formula relating to imposition of sentence but the object of sentencing should be to see that the crime does not go unpunished and the victim of crime as also the society has the satisfaction that justice has been done to it. In imposing sentence. In the absence of specific legislation. Judges must consider variety of factors and after considering all those factors and taking an over-all view of the situation, impose sentence which they consider to be an appropriate one. Aggravating factors cannot be ignored and similarly mitigating circumstances have also to be taken into consideration. (Para 14)
Judgment
DR ANAND, J.- Hetal Parekh a young 18 year old school-going girl was raped and murdered on March 5, 1990 between 5.30 and 5.45 p.m. in her Flat No. 3-A, on the third floor of Anand Apartment. The appellant was challaned and tried for rape and murder and also for an offence under Section 380 IPC for committing theft of a wrist-watch from the said flat. The learned Additional Sessions Judge found him guilty and convicted the appellant (i) for an offence under Section 302 IPC and sentenced him to death, (ii) for an offence under Section 376 IPC and sentenced him to imprisonment for life, and (iii) for the offence under Section 380 IPC, he was sentenced to undergo rigorous imprisonment for five years. The substantive sentences under Sections 376 and 380 IPC were ordered to run concurrently but were to cease to have any effect, in case the sentence of death for conviction of the appellant under Section 302 IPC was confirmed by the High Court and the appellant was executed. Reference for confirmation of the death sentence was accordingly made to the High Court. The appellant also preferred an appeal against his conviction and sentence in the High Court. The criminal appeal filed by the appellant was dismissed and the sentence of death was confirmed by the High Court. On special leave being granted, the appellant, Dhananjoy Chatterjee @ Dhana, has filed this appeal.
2. According to the prosecution case, the appellant Dhananjoy was one of the security guards deputed to guard the building Anand Apartment by M/s Security and Investigating Bureau of which Mr Shyam Karmakar PW 21 was the proprietor. On March 2, 1990, Hetal deceased complained to her mother Yashmoti Parekh PW 3 that the appellant had been teasing her on her way to and back from the school and had proposed to her on that day to accompany him to a cinema hall to watch a movie. She had made complaints about the teasing by the appellant to her mother previously also. Yashmoti PW 3 told her husband Nagardas Parekh PW 4 on March 3, 1990 about the behaviour of the appellant towards their daughter, who in turn complained to Shyam Karmakar PW 21 and requested him to replace the appellant. At the asking of Shyam Karmakar PW 21, who came to meet Nagardas PW 4 in his flat in that connection, PW 4 gave a written complaint also and the appellant was transferred and a transfer order posting the appellant at Paras Apartment was issued by PW 21. Bijoy Thapa, a security guard at Paras Apartment was posted in his place, at Anand Apartment. The transfer was to take effect from March 5, 1990.
3. As per their normal routine, Nagardas Parekh PW 4 and his son Bhawesh Parekh PW 5, father and brother of the deceased respectively, left for their place of business and college in the morning on March 5, 1990. Bhawesh PW 5 returned to the flat at about 11.30 a.m. and after taking his meals, left for his fathers place of business as was his routine. The deceased returned to her flat after taking her examination at about 1 p.m. Yashmoti PW 3, the mother of the deceased used to visit Laxmi Narayan Mandir between 5 and 5.30 p.m. daily. As usual, on the date of the occurrence also she left for the Temple at about 5.20 p.m. Hetal deceased was all alone in the flat at that time. The appellant, in spite of the order of transfer, did not report at Paras Apartment and instead performed his duties, as a security guard, at Anand Apartment between 6 a.m. and 2 p.m. on March 5, 1990. Shortly after Yashmoti PW 3, the mother of the deceased left for the Temple, the appellant met Dasarath Murmu PW 7, another security guard who was at that time on duty at the building and told him that he was going to Flat No. 3-A for contacting his office over the telephone. The appellant used the lift to go to the said flat. At about 5.45 p.m., Pratap Chandra Pali PW 6, supervisor of the Security and Investigating Bureau, visited Anand Apartment and enquired from PW 7 whether Bijoy Thapa had performed his duty in place of the ap
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