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High Court Of Calcutta
M. K. MUKHERJEE, SANKAR BHATTACHARYYA
HIMANGSHU PAHARI - Appellant
Versus
STATE - Respondent
Criminal Appeal 352 Of 1982
Decided On : 07/17/1985
CRIMINAL - Robbery and Murder - Proof of Robbery and Murder - Circumstances proved beyond reasonable doubt - Inference under S. 114(a), Evidence Act - Sentence - Death sentence commuted to life imprisonment.
Fact of the Case:
In the instant case, the appellant, along with two others, committed robbery and murdered the deceased in her flat. The deceased's brother and his friend witnessed the appellant and his companions entering the flat and talking with the deceased about repairing her refrigerator. The appellant was identified by the deceased's brother, friend, son, and daughter in a test identification parade. Stolen articles belonging to the deceased were recovered from the appellant pursuant to his statements and being led by him. The appellant pawned the ornaments on the day following the murder.
Finding of the Court:
The court found that the robbery and murder were committed in the course of the same transaction. The court drew an inference under S. 114(a), Evidence Act, that the appellant participated in both the robbery and murder based on the recovery of stolen articles pursuant to the appellant's statements and the pawning of the ornaments the day after the murder. The court also considered the appellant's absconding after the occurrence and his identification by multiple witnesses.
Issues: 1. Whether the robbery and murder were proved beyond reasonable doubt? 2. Whether the appellant participated in the robbery and murder? 3. Whether the death sentence should be confirmed or commuted?
Ratio Decidendi: 1. The court held that the robbery and murder were proved beyond reasonable doubt based on the evidence of witnesses, the recovery of stolen articles, and the appellant's identification. 2. The court inferred under S. 114(a), Evidence Act, that the appellant participated in the robbery and murder based on the recovery of stolen articles pursuant to his statements and the pawning of the ornaments the day after the murder. 3. The court commuted the death sentence to life imprisonment considering the appellant's mental agony and pain due to the prolonged pendency of the death sentence.
Final Decision: The court upheld the appellant's conviction under Sections 392 and 302/34 of the Indian Penal Code (IPC) and maintained the sentence for the offense under Section 392 IPC. However, the court commuted the death sentence for the offense under Section 302/34 IPC to life imprisonment.
( 1 ) HIMANGSHU Pahari alias Ganesh, the appellant before us, was arraigned before the learned Additional Sessions Judge, 10th Court, Alipore to answer the following charges:-"first- That you along with two others on or about the 19th day of Sept. 1979 at P-294 C. I. T. Road, P. S. Beliaghata committed robbery of one ladies wrist watch, portion of gold neck chain fitted with stone, one gold Baud, iron bangles covered with gold, and thereby committed an offence punishable under S. 392 of the I. P. C. Secondly- That you along with two others on or about the same date and at the same place in furtherance of common intention of you all did commit murder by intentionally causing the death of Sm. Khusirani Sukla, wife of Kapildeo Sukla, and thereby committed an offence punishable under S. 302/34 of the I. P. C. "on conclusion of the trial, the appellant was convicted of both the charges and sentenced to rigorous imprisonment for 5 years for the first charge and to death for the second charge. The above order of conviction and sentence is under challenge in this appeal. Along with the appeal we have also heard the reference made by the learned Additional Sessions Judge under S. 366 (1), Criminal Procedure Code, 1974 for confirmation of the death sentence. This judgment will, therefore, govern both the appeal and the reference. Short of details, the prosecution case is as under: kapildeo Sukla (P. W. 4), the husband of deceased Khusirani, was a tenant of Flat No. 3 in the first floor of Premises No. P-294, C. I. T. Road, Calcutta-10, under the landlord Anil Kumar Chanda (P. W. 3 ). Kapildeo used to occupy the above flat with his wife Khusirani, son Ranjit (P. W. 39) and daughter Sunita alias Buchi (P. W. 38 ). At the material time Ranjit was a student in the night section of the Umesh Chandra College, while Sunita was a student of the M. V. Girls School at. Park Circus. Kapildeo has a transport business in Calcutta and Ranjit used to attend his father's office at noon. They had a part-time maid servant named Lila alias Burima who used to work in their flat in the morning and in the evening. Kapildeo left for Mirzapore on 15-9-1979 in connection with his business and came to Calcutta on 21-9-1979 on receipt of the news of his wife's murder.
( 2 ) ON Sept. 19, 1979 Sunita left for her school at or about 9 A. M. as usual and Ranjit also left for his father's office round about the same time. At or about 2 P. M. the deceased's brother Gopal Guha (P. W. 10), a resident of Calcutta, along with his friend Swapan Roy (P. W. 13), paid a visit to his sister's flat. She was alone in the flat at that time and during their talks with her they came to know from her that her refrigerator had gone out of order.
( 3 ) WHILE they were talking with the deceased, there was tapping on the door of the flat. The deceased, after peeping through the eyehole of the door opened it when three men entered the flat. One of them wearing a printed shirt and carrying a khaki bag started conversation with the deceased over the repair of her refrigerator. After a while, Gopal and his friend left the flat while those three men remained inside.
( 4 ) SUNITA came back from her school at or about 4 P. M. and found the door of their flat closed with the latch fixed on its outer side. She opened the door and going inside the flat found her mother lying in a pool of blood in the dining room near the refrigerator. The windows were closed, the almirah was open and the flat appeared to have been ransacked. She repeatedly called her mother but getting no response from her, rushed to Flat No. 2 occupied by Bhagawati Prosad Kejiriwal (P. W. 7) and told everything to his wife Sarala Debi (P. W. 24 ). She at once came to the deceased's flat with her cook Basanti (P. W. 30) and Sunita and found the deceased lying in a pool of blood in the dining room near the refrigerator. She then locked the door of the flat and advised Sunita to inform her elder brother
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