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2009(6) Supreme 457
SUPREME COURT OF INDIA
V.S. Sirpurkar and Deepak Verma, JJ.
Haru Ghosh — Appellant
versus
State of West Bengal — Respondent
Criminal Appeal No. 1173 of 2008
Decided on : 27-07-2009
Death sentence — Rarest of rare case — Determination of-There can be no dispute that there cannot be a straightjacket formula depending on the numbers of murders committed or the manner in which the murder was committed or the fact that the appellant/accused was already undergoing the sentence of rigorous imprisonment for life — The findings of the rarest of rare case would have to be judged in the light of the circumstances brought about and proved by prosecution. (Para 12)
Death sentence — No dispute that this was a most dastardly murder of two helpless persons, one a woman and another, a child — There was actually no fault on their part- They did not invite any such dastardly action against themselves- Appellant/accused was given to crimes, inasmuch as he used to eke out his livelihood by selling illicit liquor, besides he was convicted for an offence of murder and was already facing a sentence of life imprisonment, though his appeal was pending before the High Court-Held these circumstances were in favour of death sentence being confirmed — However circumstances against grant of death sentence were that it was not a pre-meditated murder — No evidence to know under what circumstance, appellant/accused entered house of deceased and what prompted him to assault boy — The evidence was actually wanting on that important aspect — Appellant/accused had not come armed with any weapon in the house-Hence it could not be said that he had any such idea of assaulting or murdering or using any sharp cutting weapon as against the deceased — It was probably when he saw the dao in the hands of (PW-6), the anger in the mind of the appellant/accused exploded and he just took the dao from him , and then started assaulting deceased- Ordinarily, sentence in this case would have been imprisonment for life- However, that would have been no punishment to the appellant/accused, as he was already under the shadow of sentence of imprisonment for life, though he had been bailed out by High Court — Under the circumstance, held that life imprisonment in case of the appellant/accused shall not be less than 35 years of actual jail sentence — Appeal disposed of. (Paras 17 to 21)
Facts of the Case :
1. Appellant was prosecuted herein in the instant case for causing death of a woman aged 30 years and her son aged 12 years by assaulting them with a sharp cutting dao and for attempting to murder one another. Trial Court convicted appellant and awarded death sentence to him. Appeal there against was Dismissed by High Court affirming conviction and sentence.
2. Present Appeal has been filed against said order of High Court.
Findings of the Court :
All prosecution witnesses had graphically spoken about the murderous attack by appellant/accused on deceased persons. Nothing had come out in cross-examination of said witnesses to render their evidence suspicious in any Manner. Evidence of Doctor who performed post-mortem on the body of deceased persons, proved that appellant/accused had no other intention but to commit murder. Deceased woman suffered as many as six injuries referable to the sharp cutting weapon on the most vital parts of her body like neck. As many as four injuries were found to be on her neck resulting in cutting of vertebra, the fracture of mandible bone etc. The other two injuries were on her thigh and left knee joint. In comparison, her child had suffered 10 injuries on the equally vital parts of the body like head, right eye, face. Held appellant/accused was rightly found guilty of murdering two unfortunate, helpless and defenceless persons apparently for no fault on their part.
Result : Appeal disposed of.
JUDGMENT
V.S. Sirpurkar, J.—
1. Appellant herein Haru Ghosh has come up by way of this appeal, challenging the judgment of the High Court, whereby, the High Court confirmed the verdict of conviction, as also the death sentence awarded by the Sessions Judge. Appellant was tried for having committed murder of one Anima Pramanik, aged about 30 years and her son Subhankar Pramanik @ Kebal, aged about 12 years. He was also tried for the offence under Section 307-326 of the Indian Penal Code (hereinafter referred to as “IPC” for short) for attempting to murder one Jeevan Krishna Chakraborty, aged about 60 years.
2. The prosecution case was that on 7.5.2005, at about 11.15 hours, a telephonic message was received by N.C. Mondal (PW-37), an Assistant Sub-Inspector of Nawadeep Police Station, informing that between 10.45 Hrs. and 11.10 hrs. on that day, one Haru Ghosh S/o Mohan Ghosh, staying at Ramchandrapur Ghoshpara assaulted three persons of the said village by a sharp cutting dao and also tried to assault others and for that, the police help was immediately needed. The message was recorded in the General Diary vide Entry No. 300. One Shri Amitava Ghosh (PW-39), Inspector-in-Charge, reached the spot immediately at about 11.25 hours. The said message was sent by Samir Ghosh (PW-1), who narrated the incident to them. The bodies of a female and a male child were lying near the tubewell of the house of the victims. On this basis, the further investigation was taken up. It came out from the complaint of the complainant Samir Ghosh (PW-1) that he had heard some cries from the house of the deceased and rushed only to find the appellant/accused strangulating Subhankar Pramanik. On the intervention of the complainant, Subhankar was released from the clutches of Haru Ghosh and he was bleeding, therefore, Anima (mother of Subhankar) took him to the nearby tubewell and was pouring water on his face. It further came out that while she was pouring water, at that time one Shyamal Ghosh, a neighbour, was watching the incident with a dao in his hand. Haru snatched the dao from Shyamal and started assaulting Subhankar and Anima with that dao, as a result of which both of them collapsed on the ground with severe bleeding injuries. Thereafter, Haru ran away with the dao and only after few minutes later, the informant-complainant Samir Ghosh (PW-1) came to know that Haru had also gone to Jeevan Krishna Chakraborty’s house and hacked him and also to the house of one or two others and had injured them with the aforesaid dao. Prosecution collected the statements of the witnesses, who were Samir Ghosh (PW-1), Sabitri Ghosh (PW-2), Adhir (PW-8) and wife of Adhir namely Bandana (PW-3). It came out from the statements that these persons had intervened when Subhankar was assaulted by Haru and had rescued him. The statement of one Atasi Ghosh (PW-5) and Shyamal Ghosh (PW-6) was also collected. One Namita Ghosh (PW-4), a neighbour, was also questioned by the investigating agency, as also Sikha (PW-10), who was none else, but the daughter-in-law of Jeevan Krishna Chakraborty, who was a member of Gram Panchayat.
3. It transpired further that Jeevan Krishna Chakraborty though was assaulted severally; his statement also came to be recorded. The statements of some others present in the house of Jeevan Krishna Chakraborty were also collected by the prosecution. Thus the prosecution collected the statements of about 36 witnesses. On this basis, the charge sheet was filed.
4. It also turned out during the investigation that Haru Ghosh was already undergoing the sentence of life imprisonment in one other matter and he had come back from the jail on bail. It further transpired that the motive for this dastardly act on the part of the appellant/accused was that the accused used to sell illicit liquor and all persons in the neighbourhood including the husband of the deceased Anima used to ask him not to sell illicit liquor in the locality. It also turned out that the appel
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