Important point
It is not necessary that the person who is granted pardon must be examined in presence of the accused; accused has no right to appear and cross examine him, at the stage of granting pardon.

Headnote:(i) Code of Criminal Procedure, 1973—Section 306(4)—Approver—Granting of pardon—Procedure for—Proceeding neither inquiry nor trial—Accused has no right to appear and cross examine approver at that stage—Examination of approver by Magistrate in his Chamber not prejudicial to accused.
       It is not correct to say that the person who is granted pardon must be examined in presence of the accused and that the accused has a right to appear and cross-examine him at that stage also. The object is to provide an opportunity to the accused to show to the Court that the approver’s evidence at the trial is untrustworthy in view of the contradictions or improvements made by him during his evidence at the trial. Considering the object and purpose of examining the person accepting tender of pardon as a witness is thus limited. The proceeding which takes place before the Magistrate at that stage is neither an inquiry nor a trial. Therefore, the submission of the learned counsel that Sudipa should have been examined as witness in open court and not in the chamber and that while she was examined the Magistrate should have kept the accused present and afforded to them an opportunity to cross examine Sudipa cannot be accepted. The phrase ‘examination of a witness’ does not necessarily mean examination and cross examination of that witness. What type of examination of a witness is contemplated would depend upon the object and purpose of that provision. Section 202 Cr.P.C. also contemplates examination of witness yet it has been held, considering the object and purpose of that provision, that the accused has no locus standi at that stage. (Para 7)
       (ii) Indian Penal Code, 1860—Section 302—Murder—Death sentence for—Legality of—Accused and approver planned to eliminate approver’s mother who had been ill-treating approver—While execution of plan events happened unexpectedly and approver’s father, grand father and grand mother were also administered poison leading to murder of four persons—Three murders out of confusion—Not even remote to kill the three persons—Not a fit case to impose death sentence—Death sentence altered into life sentence.
       Held : The High Court has confirmed the death sentence on the ground that the appellant committed four murders “with the design of avarice”. The High Court further observed that the murders were committed in a cruel and calculated manner and they were committed with sinister design. What appears to have been overlooked by the Courts below is that the appellant and Sudipa wanted only Sudipa’s mother to be removed from this world. As no point of time the appellant had planned to kill Sudipa’s father and her grand parents. Sudipa was ill-treated by her mother and no other way could be seen for improving Sudipa’s future. It was, therefore, out of helplessness and frustration that Sudipa and appellant had decided to remove her. There was no other reason. Till Sudipa’s mother was made to eat the `Kalojam’ mixed with poison there was not even the remotest desire on the part of the appellant to kill Sudipa’s father or her grand parents. The subsequent events happened unexpectedly. The appellant killed them out of confusion and fright that he would be named as the murderer of Sudipa’s mother. If all these circumstances would have been taken into consideration probably the trial Court would not have imposed the death sentence upon the appellant and the High Court would not have confirmed the same. Considering the facts and circumstances of the case, we are of the view that this is not a fit case in which the death sentence can be regarded as an appropriate punishment. Sentence of death reduced to sentence of imprisonment for life. (Paras 10 and 11)
       Result : Appeal partly allowed.

Judgment

G.T. Nanavati, J.—The appellant and one Krishnanendu Jana were tried for committing murders of Subhash Chandra Pal, his wife Sulekha Pal, father Davendra Mohan Pal and mother Latika Pal in the Court of Sessions Judge, Barasat, North 24 Parganas in Sessions Case No. 4(5) of 1993. The learned trial Judge held that the appellant committed the murders and Krishnanendu aided and abetted the appellant in committing the offence. He accordingly convicted the appellant under Sections 302 read with 120B and 201 IPC. He convicted Krishnanendu under Sections 302 read with 109 IPC. He imposed death sentence of both of them.

2. Challenging their conviction and sentence the appellant and Krishnanendu filed separate appeals in the Calcutta High Court. The learned trial Judge also made a reference to the High Court for confirmation of the death sentence. The appeals and the reference were heard together and were disposed of by a common judgment. The High Court confirmed the conviction and sentence of the appellant but gave benefit of doubt to Krishnanendu and acquitted him. As his conviction and sentence have been confirmed the appellant has filed this appeal challenging the same.

3. The prosecution version, as held proved by the evidence of PW 2 Sudipa, was as under :

(a) The family of Subhash Chandra Pal (deceased) consisted of his parents, wife and the only daughter Sudipa. They were economically well-off. Subhash Chandra Pal wanted to give good education to his daughter Sudipa and, therefore, used to engage private tutors also since Sudipa was in class VI. In 1988, when Sudipa was in class IX, her father engaged the appellant as a private tutor to teach her certain subjects as he was residing hereby. Initially Sudipa used to go to his house, but after sometime the appellant, with the consent of Sudipa’s parents, started teaching her by going to her house every evening.

(b) Sudipa was often ill-treated by her mother as she believed that Sudipa was responsible for all her physical sufferings which had started after her birth. She was not allowing her to mix with boys and girls with the result that she did not have any friend. She was also at times physically assaulted by her mother. Sudipa used to make complaints about the ill-treatment by her mother to the appellant. The appellant used to listen to her complaints and console her and thereby he had won the confidence of Sudipa. Sudipa also started believing that the appellant was her real well wisher.

(c) As the relationship of Sudipa and appellant became more and more close the appellant started touching her body. He used to tell her stories which could influence her mind and also arouse romantic feeling in her. By the middle of 1990 they started moving out alone after remaining absent from their respective schools.

(d) On 24.9.1990 the appellant had a headache when he was in the house of Sudipa, he had lied down on a sofa and Sudipa had rubbed Amritanjan balm on her head. This was seen by her mother. After the appellant had left Sudipa’s mother had beaten her for that reason. On two subsequent occasions also her mother had noticed the appellant placing his hands on the back of Sudipa and because of that she was beaten by her mother. All these incidents used to be narrated by Sudipa to the appellant. After hearing the last incident in September, 1990 the appellant had told Sudipa that her mother really deserved to be taken to a hill and thrown down from the hill top.

(e) In November, 1990 her other teacher Ashutosh Chakraborty was discontinued. Believing that her father had done so at the instance of her mother, Sudipa became very agitated and complained about it to the appellant. The appellant took this opportunity to poison her mind by telling her that her mother was not eager to see improvement in her studies and to make her life a success and, therefore, if she wanted to come up in life she should remove her from this world.

(f) During the latter half of 1990 the a

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Important pointIt is not necessary that the person who is granted pardon must be examined in presence of the accused; accused has no right to appear and cross examine him, at the stage of granting pardon.

Important point
It is not necessary that the person who is granted pardon must be examined in presence of the accused; accused has no right to appear and cross examine him, at the stage of granting pardon.