IMPORTANT POINT
The court emphasized the necessity of considering mitigating circumstances and the possibility of reformation before imposing the death penalty.

JUDGMENT :

Soumen Sen, J.

1. The brutality of murder of Maya Subba, a house maker and her 13 year old child by inflicting multiple wounds has resulted in a conviction with death sentence by the learned Sessions Judge, Darjeeling which is the subject matter of challenge in this appeal.

2. The investigation commenced on the basis of a written complaint by one Sumit Limbu on 2nd September, 2017 before the Officer in Charge, Pulbazar P.S. inter alia, stating that on 1st September, 2017 at about 11 P.M. his uncle who happens to be the husband of his aunt informed him over telephone that his mother Maya Subba aged about 50 years and his younger sister Ms. Pragya Subba aged about 13 years have been brutally murdered with the help of sharp and heavy weapon by Padam Subba aged about 42 years who happens to be one of his close relatives and usually performed domestic and household job and had two meals a day.

3. In the FIR it has been stated that his uncle Dambar Subba narrated the incident of the murder that took place at around 10.30 P.M to him. The complaint, inter alia, states that Dambar Subba on being alerted by the screaming of Pragya rushed to the house along with his wife Gouri Subba and while they were on their way they found Padam was coming out from the said house and was going towards his own house. When they met Padam on the way and enquired from Padam as to what had happened Padam did not give any reply and went away. Thereafter, Dambar and his ailing wife reached the house where they found Maya lying dead in kitchen in pool of blood. The uncle and aunt of the complainant/informant became scared and fled from the house and reached the house of Sudip Gurung and narrated the entire incident to Sudip. Thereafter, all the villagers were informed and when all the villagers assembled his uncle along with other villagers again visited the said house and during their search they found the dead body of his sister Pragya with bleeding injury in a ground adjacent to Latrine. However, Padam Subba could not be traced and he fled away from the said village.

4. On the basis of the written complaint the investigation was initiated. The accused was arrested on 3rd September, 2017. At the trial, 18 witnesses have been examined.

5. The learned District and Sessions Judge on the basis of the evidence both oral and documentary awarded capital punishment in view of the fact that Maya and Pragya have been brutally murdered with sharp and heavy weapon. In arriving at the said finding the learned Sessions judge has inter alia, relied upon the testimony of the eye witnesses and forensic evidence. While awarding the sentence of capital punishment the learned Sessions Judge did not find any mitigating circumstances to commute the sentence to life imprisonment or to any lesser punishment.

6. Mr. Arjun Chowdhury, learned Counsel engaged by the District Legal Services Committee has ably argued the death reference on behalf of the appellant. Mr. Chowdhury has referred to the FIR and the evidence of the eye witnesses to show that the cases made out by the prosecution is inconsistent and contradictory. There are variations in the statement narrated in the FIR and the testimony of the witnesses who claimed to have seen the accused in committing the murder or leaving the house of Maya after committing the murder.

7. The submission of Mr. Chowdhury with regard to the evidentiary value and unreliability of the witnesses are summarized below:

i) PW 1-SUMIT LIMBU

a. PW-1 is the de-facto complainant. He is the Son of the deceased Maya Subba and brother of the minor deceased Pragya Subba. He was not present at the place of occurrence during the fateful night and was informed about the incident by his uncle Damber Subba (PW2) and as such his evidence is hearsay in nature. Furthermore, in the FIR, he stated that as per his uncle's/PW2's version, he was simply coming out of the deceased's house but during his evidence, he improved his version and said that his uncle/PW2 narra