Calcutta High Court (Appellete Side)
The State Of West Bengal vs Susanta Chowdhury on 11 June, 2025
Author: Debangsu Basak
Bench: Debangsu Basak
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IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Debangsu Basak
And
The Hon'ble Justice Md. Shabbar Rashidi
DR 7 of 2023
The State of West Bengal
Vs.
Susanta Chowdhury
With
CRA (DB) 349 of 2023
Susanta Chowdhury
Vs.
The State of West Bengal
For the Appellant : Mr. Kallol Mondal Ld. Sr. Adv.
Mr. Krishan Ray, Adv.
Mr. Anamitra Banerjee, Adv.
For the State : Mr. Debashish Roy, Ld. PP
Mrs. Amita Gaur, Adv.
Mrs. Shaila Afrin, Adv.
Hearing Concluded on : May 23, 2025
Judgement on : June 11, 2025
DEBANGSU BASAK, J.:-
1.
A death reference and an appeal have been heard
analogously as they relate to the same impugned judgment of
conviction dated August 29, 2023 and order of sentence dated
August 31, 2023 passed by the Fast Track, Third Court,
Behrampore, Murshidabad in Session Serial No. 1387 of 2022
subha
karmakar
Digitally signed by
subha karmakar
Date: 2025.06.11
13:09:13 +05’30’
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convicting the appellant under Section 302 of the Indian Penal
Code and under Section 28 of the Arms Act and sentencing
the appellant to death.
2. Appellant not being represented on several dates of
hearing of the death reference and the appeal we had
appointed the learned Senior Advocate and the learned Junior
Advocate appearing for the appellant, as advocates for the
appellant and requested the Secretary, State Legal Services
Authority to regularize such appointment, which was done.
3. Learned Senior Advocate appearing for the appellant
has submitted that, the prosecution failed to prove the
charges beyond reasonable doubt. He has submitted that,
Prosecution Witness (PW) No. 3 has stated in his deposition
that, apart from himself, there were other employees of his
present at the place of occurrence. However, such employees
have not been examined by the prosecution. According to him,
this failure to examine all the eyewitnesses violates the
principles of fair trial as has been laid down in 2004 Volume
13 Supreme Court Cases 308 (State of Madhya Pradesh
versus Dharkole alias Govind Singh and others).
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4. Learned Senior Advocate appearing for the appellant
has submitted that, trial Court placed undue reliance on the
testimonies of PW 2 and PW 3, which is without corroborative
support from independent and neutral witnesses. According to
him, the same impinges upon the veracity of the testimonies
of those prosecution witnesses. The learned trial judge has
erred in not disbelieving them. He has contended that, the
testimony of PW 2 where he claimed that, despite being
threatened with a gun, he proceeded to video record the
incident should be disbelieved. Similarly, the claim of PW 3
that, he called the police should be disbelieved as the same
did not result in registration of a first information report. He
has also pointed out the conduct of PW 4 who resided near
the place of occurrence and did not become aware of the
incident although, the other 2 witnesses had seen the incident
with such clarity.
5. Referring to the digital evidence, learned Senior
Advocate appearing for the appellant has contended that,
learned trial Court accepted closed-circuit television footage
and a video allegedly recorded by PW 2 as conclusive proof
without establishing the chain of custody or ensuring
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compliance with the mandatory requirements of section 65B
of the Indian Evidence Act. In this regard, he has relied upon
2020 Volume 7 Supreme Court Cases 1 (Arjun Panditrao
Khotkar vs. Kailash Kushanrao Gorantyal and others).
6. Learned Senior Advocate appearing for the appellant
has contended that, the forensic evidence introduced at the
trial, particularly the gait analysis is scientifically inconclusive
as it is yet to be and universally accepted a valid method of
identification.
7. Learned Senior Advocate for the appellant has
submitted that, the purported incident occurred in the context
of a failed personal relationship and appears to have been
triggered by intense emotional disturbance and heartbreak.
According to him, the prosecution has not been able to
establish that the act was cold-blooded or meticulously
planned. Rather, the incident appears to be a spontaneous act
of emotional collapse. He has pointed out to the date of birth
of the appellant and referred to 1999 Volume 5 supreme
Court Cases 702 (Sunil Baban Pingale vs. State of
Maharashtra) that age should be considered as a mitigating
circumstance, in favour of the appellant.
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8. On the aspect of death penalty, learned Senior
Advocate appearing for the appellant has relied upon 1983
Volume 3 Supreme Court Cases 470 (Macchi Singh and
others versus State of Punjab), 2009 Volume 6 Supreme
Court Cases 498 (Santosh Kumar Satishbhusan Bariyar
versus State of Maharashtra), 1980 Volume 2 Supreme
Court Cases 684 (Bachan Singh versus State of Punjab),
2012 Volume 4 Supreme Court Cases 37 (Rajendra
Pralhadrao Wasnik versus State of Maharashtra) and
2013 Volume 5 Supreme Court Cases 546 (Shankar
Kisanrao Khade versus State of Maharashtra). He has also
has relied upon 2011 Volume 2 Supreme Court Cases 764
(Rameshbhai Chandubhai Rathod vs. State of Gujarat),
2018 SCC OnLine Cal 6911 (State of West Bengal vs.
Sukol Tudu alias Chhattu) and 2025 SCC OnLine Cal
3491 (Niranjan Mondal vs. State of West Bengal) in this
regard.
9. Learned Senior Advocate appearing for the appellant
has drawn the attention of the Court to the report submitted
by the State pursuant to the order dated May 1, 2025 with
regard to the health and mental condition of the appellant. He
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has contended that, the appellant was suffering from
depression for a given point of time. He has also referred to
the educational qualification of the appellant and contended
that, the appellant does not deserve a death penalty.
10. Learned Public Prosecutor appearing for the State has
contended that charge of murder as against the appellant
stands proved beyond reasonable doubt at the trial. In such
context, he has referred to the deposition of the eye-witnesses
at the trial as also the close circuit television footage which
were marked as Exhibit at the trial. He has pointed out that,
the victim lodged a general diary being Exhibit 21, long prior
to the incident as against the appellant. It has come out in the
evidence that, the appellant used to harass the victim.
11. Police had received a written complaint dated May 2,
2023 which was registered as the First Information Report on
such date by the police. Police had investigated such
complaint and submitted a chargesheet dated July 14, 2022,
inter alia, under Section 302 of the Indian Penal Code and
Section 28 of the Arms Act, 1959.
12. By an order dated September 5, 2002 charges as
against the appellant had been framed under Section 302 of
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the Indian Penal Code and under Section 28 of the Arms Act,
1959. Essentially, the appellant has been charged with the
murder of the victim on May 2, 2022 at about 6:35 PM on the
road in front of the gate of the house belonging to PW 4 and
being found to be in possession of an imitation firearm and
trying to make an attempt to use such firearm with an
intention to resist or prevent lawful arrest and detention after
commission of the murder.
13. In support of such charges, prosecution has examined
34 witnesses and tendered various documents which were
marked Exhibits as well as material evidence which were
marked as Material Exhibits, at the trial.
14. The doctor who conducted the post mortem of the
deceased has deposed as PW 1. He has stated in his evidence
that, he received the dead body of the deceased from a Sub-
Inspector of Police for holding the post mortem examination
on May 2, 2022. He has stated that, during post-mortem
examination he found 45 number of injuries over the dead
body of the deceased. He has tendered the post mortem report
which was marked as Exhibit 1. He has stated that,
subsequent to the post mortem examination, several queries
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were made by the requisition dated August 26, 2022. Along
with such requisition, one Exhibit D was sent to him being a
knife along with a copy of the post mortem report and order of
the learned Chief Judicial Magistrate, Murshidabad dated
July 25, 2022. He has identified such knife which was marked
as Material Exhibit 1. He has also identified various other
documents which were tendered in evidence and marked as
Exhibits. He has stated that, he preserved the viscera report of
the deceased, Post mortem blood without preservative, blood
soaked with blotting paper, nail cutting with nail scrapping,
scalp hair with roots, wearing apparels of the deceased,
vaginal swab with smear which he kept in a bag, labelled,
sealed and signed and handed over to the escorting police
personnel for sending the same for chemical examination and
microscopic examination at the Forensic Science Laboratory
through the police station. He has identified those materials
when shown at the trial. Such materials have been marked as
Material Exhibit II. He has stated that, the injuries suffered by
the victim were ante mortem in nature and that, he found
injuries of different sizes on the vital organs. He has identified
injury no. 25, 26, 27 and 28 noted in the post mortem report
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as defence wounds arising out of the resistance of the victim.
He has identified injury no. 41 and 42 to be injuries which
may be sustained if the victim falls on the ground.
15. PW1 has been cross-examined at length on behalf of
the appellant. Nothing fruitful to the defence has been
extracted by such lengthy cross-examination.
16. A working journalist with a Bengali news channel has
deposed as PW 2. He has stated that, his office is situated just
beside the place of occurrence. He has stated that, the time of
the incident, he was at his office. He has described that at
about 6:30 PM on May 2, 2022, he heard a sound and came
out of his office. After coming out of his office, he had noticed
that in front of the southern side gate of the house of Ashim
Dutta, one boy wearing a red coloured T-shirt was standing on
the road and was having a gun in one of his hands and a knife
in the other. He has also noticed that the boy was stabbing a
girl with the knife indiscriminately. He has stated that apart
from him about 4/5 persons were present there at the
relevant time of the incident. They had tried to rescue the girl
taking help of a bamboo stick but could not do so as the
assailant was having a gun in his hand. Immediately, he had
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taken out his mobile phone and captured the entire incident
and made video recording in his phone.
17. PW 2 has stated that, after stabbing the girl the
assailant fled away. He has stated that he received a notice
from the police station for handing over the video footage of
the incident. He has identified his signature on the summons.
He has stated that, he had copied the video footage of the
incident from his mobile without editing the same on to a
flash drive which he made over to the Sub-Inspector of Police.
He has also handed over a Certificate under Section 65B of
the Indian Evidence Act to such Sub-Inspector of Police. He
has tendered the certificate under Section 65B of the Evidence
Act which was marked as Exhibit 7. The flash drive has been
marked as material Exhibit 3. He has identified the appellant
as the person who assaulted the victim on that date. He has
also identified the material Exhibit no. I as the knife which the
appellant used to assault the victim. He has identified the
wearing apparels of the victim at the material point of time. He
has identified the pistol carried out by the appellant at the
point of time of the incident which was marked as Exhibit V.
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18. PW2 has been cross-examined at length on behalf of
the appellant without any fruitful material being extracted
from him.
19. A businessman of the locality has deposed as PW 3. He
has stated that, on the date of the incident at about 6:30 PM,
he was taking steps for closing his shop when he heard a hue
and cry from a girl. On hearing the same, he along with three
of his employees rushed out of the shop and proceeded
towards the place from where the sound of cry of the girl was
coming. He has identified the employees. He has stated that,
on reaching the spot, he noticed that one boy was repeatedly
stabbing a girl with knife and that the girl was lying on the
road. He has stated that the place was illuminated with street
light and that due to such light, he could see the incident very
clearly. On noticing the incident, he immediately called the
police through his mobile phone. One of his employees on
noticing the incident had taken one bamboo stick which was
lying on the road and rushed towards the girl to save her. He
along with such employee had proceeded towards the
assailant who pointed his gun towards them and shouted that
since he was killing one, he will be able to kill 10 more. He
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has stated that on hearing such statement, they immediately
retreated from the place of occurrence to save themselves.
20. PW 3 has stated that he noticed one photographer
from a Bengali news channel, was present at the spot of the
incident and was doing video photography of the entire
incident through his mobile phone. By the time police arrived,
the appellant had fled the spot. He has identified the appellant
in Court. He has tendered various documents in evidence
which was marked as Exhibits.
21. PW 3 has been cross-examined at length on behalf of
the defence without any material favourable to the defence
being extracted.
22. The person who lodged the police complaint which was
treated as the First Information Report has deposed as PW 4.
He has stated that, the victim used to live in the mess at his
house at that material point of time. He was in his house
engaged in Kirtan. At around 6:35 to 6:40 PM, he had heard
the calling bell and on answering thereto he was informed of
the incident. Thereafter, he had lodged the police complaint
which was tendered in evidence and marked as evidence. He
has also tendered the photographs of the victim.
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23. The photographer who took the photographs of the
place of occurrence has deposed as PW 5. He has tendered the
photographs and the video recording he made at the place of
occurrence, at the trial.
24. The then Officer-in-Charge, Englishbazar Women
Police Station, Malda has deposed as PW 6. She has stated
about the General Diary recorded by the police on the
complaint of the victim.
25. The Sub Inspector of Police who had conducted the
inquest report on the body of the victim has deposed as PW 7.
He has stated about the conduct of the inquest and tendered
the relevant document in evidence, with regard thereto.
26. A police constable of the Samserganj police station has
deposed as PW 8. He has stated that, one officer from the
Behrampore Police Station arrived at the Samserganj Police
Station along with the appellant. Appellant had a big bag with
him which was opened in presence of PW 8 and another
constable at the Samserganj Police Station. A red shirt had
been found inside the bag carried by the appellant. There was
another side bag inside the big school bag where there was a
knife and a plastic toy gun. Appellant was wearing a jeans
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pant and shoes. There were blood stains on the side and the
shoes, jeans pant was smeared with blood. Appellant was
given a pant after he had removed the jeans pant which he
was wearing. Appellant had a mobile phone containing two
SIMs. A seizure list was prepared with regard to such Articles
which was signed by PW 8, Niranjan Hembram another
constable and the appellant. He has identified the seizure list
as well as the seized Articles in Court.
27. PW 9 is the younger sister of the victim. She has stated
that, the victim used to live in the mess of PW 4 and that,
victim was a student of Behrampore Girls College studying
Zoology Honours. PW 9 has stated that, at a given point of
time, the victim used to have a good relation with the
appellant. Appellant had started taking intoxicating articles
for which the victim started avoiding the appellant. Appellant
had become furious and started disturbing the victim in
different ways. Father of the PW 9 and the victim had lodged a
General diary at the Malda Womens Police Station when the
victim told her father that the accused was disturbing her in
different ways. The victim had passed HS examination from
Malda and came to Behrampore for her graduation. Even
15
thereafter, the appellant had tried to disturb the victim in
order to have a relationship.
28. PW 9 has stated that, the victim developed a good
relation with another person. Appellant had come to know
about such relationship and thereafter started calling the
victim in different ways. The victim was not able to block all
the numbers from which the appellant used to call her since
the appellant had many numbers. The appellant used to pass
threats to the victim that he would murder her. In order to
save herself from the appellant, the victim had purchased a
sim without any name. The victim had told PW 9 about the
events of her life before her death. Family members of the
victim had lastly called the victim in the afternoon on May 2,
2022. The victim had asked her father to send the monthly
rent to her. Her father was trying to transfer the money to the
victim but the transfer was not getting successful so father
had called the victim in the evening but could not contact her
on phone. PW 9 came to know at around 6:45 PM on May 2,
2022 that the victim had been brutally murdered by the
appellant near the mess where she was living. PW 9 had
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identified the appellant in Court as also the mobile phone of
the victim which was marked as Material Exhibit XXIII.
29. An employee of Bharti Airtel Limited, has deposed as
PW 10. He has stated that, pursuant to a requisition in
connection with the present case, he had forwarded Section
65B of the Evidence Act Digital Certificate, customer
application form and call details record of a mobile phone for
the period from April 10, 2022 to May 3, 2022 along with the
decoded tower location of such mobile number for the period
of May 2, 2022 only. He has identified his signature on those
documents which were tendered in evidence and marked as
Exhibit.
30. A police constable who had visited the place of
occurrence on May 2, 2022 at around 9 PM along with
another constable has deposed as PW 11. He has stated that,
he searched to the place of occurrence and seized the blood
soil, soil without blood, one mobile phone, one mobile black
cover with blood stains on it and prepared a seizure list with
regard thereto. He has tendered the seizure list in evidence
which was marked as Exhibit. The Material Exhibits that were
17
tendered by him have been also been marked as Material
Exhibits.
31. A police constable has deposed as PW 12. He has
stated that on May 4, 2022 another constable brought
wearing dress of the victim with several holes therein, a pair of
female shoes with soil, a red coloured bra, panty with blood
stains in plastic container and post mortem blood sample and
handed over the same to the investigating officer. He has
stated that the investigating officer prepared a seizure list
which he signed. He has identified his signature and the
signature of another person. Documents tendered in evidence
have been marked as Exhibits while the material exhibits
tendered in evidence were also marked as material exhibits.
32. A lady sub-inspector with the Cyber Crime Police
Station has deposed as PW 13. She has stated that, on May 8,
2022, the investigating officer came to the Cyber Crime Police
Station with the 24 Pally Durga Puja Samiti Secretary along
with a Digital Video Recorder (DVR) of 16 channel. The
Secretary had handed over the DVR to the investigating officer
who seized the same and prepared a seizure list which she
signed. She has identified her signature along with the
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signature of a civic volunteer which were marked as Exhibits.
She has stated that, the investigating officer came to the
Cyber Crime Police Station at around 8/8.30 p.m on the same
day with other requisition. She has stated that the forensic
expert came after the investigating officer at the police station,
when the seized DVR was given to the forensic expert. CCTV
footage from the DVR was imaged into one flash drive and
from that flash drive the footage was taken into another flash
drive. Investigating officer had also handed over two seized
mobile phones to the forensic expert. One mobile could not be
opened due to unknown odd pattern lock but the other mobile
phone was opened and the data from the second mobile phone
was taken into two empty flash drives by way of mobile aided
forensic software. Forensic expert had handed over the two
back covers of the mobile with blood stains to the
investigating officer of the case. The Articles had thereafter
been handed over to the investigating officer by the forensic
expert and a seizure list prepared.
33. PW 13 has tendered the seizure list in evidence as also
the flash drives which were marked as Material Exhibit 21
series and Material Exhibit 22 series. The back covers of the
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mobile marked as C1 and I3 at the time of seizure have been
marked as material XXIII collectively, at the trial.
34. Land lord of the appellant has deposed as PW 14. He
has stated that, the distance between his house and the road
on which the place of occurrence was located was
approximately 250 meters. He has identified the appellant in
Court after stating that he knew the appellant and that the
appellant was on rent from April 18, 2022 to May 22, 2022.
PW 14 has stated that, appellant visited his home in the
intervening period. On May 1, 2022 appellant had returned to
his house. On the next day that is on May 2, 2022, appellant
had left his house in the evening at around 6 p.m and
returned at around 7.10 p.m. Appellant had left the house in
haste just thereafter with his bags and baggage handing over
the key of the house to the wife of PW 14. Thereafter police
had come to PW 14 when they narrated everything to the
police. PW 14 has stated that he handed over the copy of the
Aadhar card with the signature of the appellant to the police.
He has identified his signature with regard to the seizure list
which were tendered in evidence and marked as Exhibits.
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35. The officer-in-charge of Samserganj Police Station at
the material point of time has deposed as PW 15. He has
stated that, he came to know at around 7 p.m that one lady
was brutally murdered by her lover at Behrampore. Then,
Superintendent of Police had asked him to set up a Naka
check so that the appellant could not flee away to Malda. At
Darbanga More at NH 34 a Naka check was set up. One sub-
inspector of the Samserganj police station along with other
force had detained the appellant there. Police had taken the
appellant along with a black bag to the Samserganj police
station. Behrampore police station had been informed along
with the Superintendent of Police of Murshidabad and
Jangipur by him. Investigating officer of the case had come to
the Samserganj Police Station where, the appellant was
arrested and his bag seized. On searching the bag of the
appellant, investigating officer had found that there was
another bag inside which contained one blood stained knife
and a toy pistol. A red coloured round neck T-shirt smeared
with blood had been also found in the bag seized and the
wearing apparels of the appellant were also seized by the
investigating officer. The jeans and the pants were smeared
21
with blood. A seizure list was prepared by the investigating
officer in presence of two constables of the Samserganj police
station, before him. He has identified the seized materials in
Court. He has identified the signature of one of the seizure list
witnesses who was the Assistant Sub-inspector of police.
These documents were tendered in evidence and have been
marked as exhibits.
36. The father of the victim has deposed as PW 16. He has
identified the appellant in Court. He has stated that, when the
victim was studying in Class IX, he had appointed a private
tutor where, the appellant also used to come to his house
taking tuition from the same teacher. In this way, appellant
had got acquainted with the victim. After 2/3 months, such
tuition was closed as the tutor had stopped coming.
37. PW 16 has stated that he came to know from the
victim that a love relationship developed between the victim
and the appellant. On being informed by the victim, he had
narrated the incident to the local people and to the aunty of
the appellant that the appellant used to disturb the victim off
and on. He has stated that, it was decided in the meeting in
the presence of the appellant and his aunty along with local
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people that the appellant would not disturb the victim any
further. But even thereafter, the appellant did not stop
disturbing the victim whenever the appellant had found her in
the market or outside the house. He had lodged a complaint
with the Malda Women Police Station against the appellant.
After passing Higher Secondary Examination, the victim had
got admission in Behrampore Girls College where she started
to live in mess. When the Covid-19 broke out the victim had
returned home at Malda. During the Covid period, the victim
again developed relationship with the appellant. After the
Covid period was over, the victim had come to know that the
appellant was given to intoxication. Thereafter, the victim had
stopped talking to the appellant. The victim had passed
threats to kill the victim throwing acid upon her or to kill her.
38. PW 16 has stated that, he informed the local
Councillor about the incident when a meeting was held in
presence of the appellant and other relatives and local persons
where it was decided that the appellant would not disturb the
victim. Appellant was also asked to delete the pictures which
he had taken in his laptop. Appellant used to blackmail the
victim by showing photos in his laptop threatening to upload
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such photos on the social media platform. PW 16 has stated
that, on May 2, 2022 when he talked to the victim between
11am and 12 noon lastly, she asked for the mess rent. At
about 6 PM, he had tried to transfer the rent through UPI but
failed. Thereafter, PW 16 had tried to contact the victim but
could not. At about 7:30 pm, the Officer-in-Charge of the
Behrampore Police Station had called him to the hospital,
when he went and found the victim to be murdered.
39. PW 16 has tendered the written complaint addressed
to the Officer-in-Charge, Behrampore Police Station which was
tendered in evidence as Exhibit 15. He has also identified his
signature on the Inquest Report.
40. The Doctor who was posted as General Duty Medical
Officer at Anup Nagar Block Primary Health Centre has
deposed as PW 17. He has stated that on May 3, 2022 he was
posted at that place and in such capacity. During his duty, he
had examined the appellant who was brought to him by the
police. He had taken the left thumb impression of the
appellant on the emergency treatment sheet. He has tendered
such document which was marked as an exhibit. He has
stated that, he examined the appellant and found a small
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sharp cut injury on his right hand. He has stated that, the
appellant may sustain such injury on his hand if his hand is
oily or slippery and he attacks someone with a sharp cutting
weapon. He has however failed to identify the appellant in
Court.
41. The Doctor who had examined the appellant on May 4,
2022 has deposed as PW 18. He has tendered medical
documents in evidence which were marked as exhibits. He has
stated that, he found a small cut injury on the right hand of
the appellant. He has opined that the injury sustained by the
appellant may be due to a sharp cutting weapon and that
accidental injury may take place on the palm of a person
holding a sharp cutting weapon and attacking someone again
and again with his hand being oily or slippery. He was also
unable to identify the appellant in Court as the person who he
had treated.
42. The Assistant Director of the State Forensic Science
Laboratory which examined the seized electronic material as
well as the other seized materials, has deposed as PW 19. He
has tendered the reports and other documents in evidence
which were marked as exhibits.
25
43. A friend of the victim has deposed as PW 20. He has
stated that, he was studying Zoology Honours in 2022. He has
stated that, the victim was his friend and that she was
murdered. He has stated that, he and the victim used to go to
a place for taking tuition where, friendship between them
developed from 2021. He has stated that the victim confided
in him that, the appellant used to harass her by calling on her
mobile phone number several times. Victim had to change the
mobile phone number several times. He has stated the last
mobile phone number of the victim. She had also confided in
him that, a meeting was held in Malda where, the appellant
was asked not to harass her.
44. PW 20 has stated that, on May 2, 2022 victim and he
went to a Mall for watching a movie. Such movie had ended at
around 6:15 PM. He had left the victim near the Mall and went
home. He has stated that the distance between the Mall and
the mess where the victim used to stay was around 4 to 5
minutes. When he had boarded the bus and travelled for
about 10 to 15 minutes then, one call came from the mother
of the victim. Mother of the victim had told him that she was
not getting the victim on phone. Thereafter, he had called the
26
victim 10 to 12 times. One police had received the last call
and told him that the victim met with an accident and asked
him to come at the earliest. Firstly he had gone to the police
station where he was asked to go to the hospital. There he was
told by the police that the victim had been murdered. Police
had enquired of him as to his relation with the victim. Police
had showed him a video. Victim had shown the photo of the
appellant to him earlier. In the video of the police, he had
identified the appellant as the assailant. He had told the police
that he wanted to depose before the Magistrate. He had
tendered his statement recorded before the Magistrate which
was marked as an exhibit. PW 20 had identified the appellant
in Court. He had also identified Exhibit 55 as that of the
appellant. He has stated that, victim told him that the
appellant was given to intoxication and that he used to doubt
her so she had ended her relation with the appellant.
45. The officer in charge of the police station has deposed
as PW 21. He has stated that he received a requisition for the
purpose of getting Call Details Recording and Tower Location
of 3 mobile phone numbers which he identified. He had
collected the soft copies of the CDR and CAF in connection
27
with the 3 mobile numbers from the service provider. He has
tendered his report with regard thereto which was marked as
an exhibit at the trial.
46. An employee of the West Bengal State Electricity
Development Corporation Ltd has deposed as PW 22. He has
stated that, he received a requisition from the investigating
officer of the case regarding the location of 2 electric poles. He
had gone with the investigating officer to the area where the
poles were located, the location of the poles physically on the
spot with the help of Google Maps and prepared a report at his
office. He has tendered his report at the trial which was
marked as an exhibit.
47. The scribe of the written complaint has deposed as PW
23. He has stated that, he is the younger brother of the
complainant. He has identified his signature on the written
complaint and stated that, the written complaint was written
as per the instruction of his elder brother.
48. A photographer who was asked to take photographs by
the investigating officer has deposed as PW 24. He has stated
that, he was asked by the investigating officer to record the
gait pattern of the appellant. He has stated that, he took his
28
camera, went to the correctional home and video graphed the
gait pattern of the appellant. At that time, the jailer of the
correctional home, the forensic expert, and the Magistrate
were present. He has tendered his report at the trial which
was marked as an exhibit. He has also identified the appellant
in Court.
49. The secretary of the 24ser Pally Durga Puja Committee
has deposed as a PW 25. She has stated that, she received a
notice from the investigating officer for the purpose of seizing
the DVR and the CCTV installed at the road. She has stated
that, she went to the Cybercrime Police Station and handed
over the DVR of the requisitioned CCTV footage to the police
whereupon, a seizure list was prepared. She has identified her
signature on such seizure list. She has tendered the certificate
under section 65B of the Indian Evidence Act which was
marked as an exhibit. She was shown the Material Exhibit 20
series which she has identified as the ones which she
produced to the police as per the requisition. She has
explained that, the difference in time in the footage of CCTV
with the actual time was due to the problem of the battery
which she stated to the police also.
29
50. The driver of the pickup van on which, the appellant
had taken the ride has deposed as PW 26. He has stated that,
on May 2, 2022 he was coming from Nadia and going towards
Farraka when he stopped his vehicle at Urampur to have tea.
There many persons had boarded his van. At the Dakbunglow
More under the Samserganj Police Station, police had stopped
his vehicle and took away the appellant. He has identified the
appellant in Court as the person who was taken away by the
police from the van on May 2, 2022. He has stated that, the
appellant had a school bag on his back when he was taken by
the police from the vehicle.
51. A senior scientific officer posted at the State Forensic
Science Laboratory, Kolkata has deposed as PW 27. On being
shown Exhibit 58, he has stated that, his office received 15
exhibits along with the requisition being Exhibit 58. He has
stated that, as per the requisition, he examined the exhibits
on biological point of view as per query given in the forwarding
memo. He has tendered the documents at the trial which were
marked as exhibits.
52. The Assistant Director, Biology of the State Forensic
Science Laboratory at Kolkata has deposed as PW 28. He has
30
stated that, he received some samples from the forensic
scientist and on examination of the same, he found human
blood in all the samples. He has tendered his report which
was marked Exhibit 106 at the trial. He has stated that,
exhibits F, G, H, J and L are all female profile as that of Q. He
has tendered his report in this regard which was marked as
Exhibit 108 collectively. He has stated that DNA sequence
varies from man to man and that it is unique.
53. A constable of the Salar Police Station has deposed as
a PW 29. He has stated that, he went with a sub- inspector in
connection with the police case to the police morgue with a
dead body challan and the dead body of the victim. They had
deposited the dead body at the police morgue. On May 4, 2022
he had collected the alamat from the police morgue and
handed over the same to the investigating officer whereupon a
seizure list was prepared which he signed. He has identified
his signature on the seizure list which was tendered in
evidence.
54. The nodal officer of Flipkart Internet Private Limited
has deposed as PW 30. He has identified the product being a
SG store PUBG Mauser Pistol Gun 729 for kids Guns and
31
Darts Black, which was ordered by and delivered to the
appellant through a registered mobile phone number. He has
tendered documents with regard thereto in evidence which
were marked as exhibits.
55. The Judicial Magistrate who recorded the statement of
PW 3 and PW 20 has deposed as PW 31. He has tendered
documents with regard thereto at the trial which were marked
as exhibits. He has stated that, a Test Identification Parade
was held at the correctional home on May 20, 2022 in his
presence. He has stated that, PW 3 and Bapan Sharma were
present and identified the appellant. The Test Identification
Parade report has been tendered in evidence and marked as
exhibit. He has also stated that on June 14, 2022 one gait
videography of the appellant was held at the correctional
home in his presence and also in the presence of the video
photographer and the controller of the correctional home. He
has tendered the report with regard thereto which was marked
as an exhibit at the trial. He has identified the micro-SD card
with regard to the gait videography. He has identified the
appellant in Court.
32
56. The nodal officer of a mobile service provider has
deposed as PW 32. He has identified the CDR of the mobile
phones and the decoded tower locations which were tendered
in evidence and marked as exhibits.
57. The local Councillor of the area where the residence of
the victim was located at Malda deposed as PW 33. He has
stated about an incident between the appellant and the family
of the victim happening in 2021 when, he was asked by the
father of the victim to intervene. He has stated that, on
reaching the residence of the father of the victim, he found
that the appellant was in a drunken state abusing the father
of the victim and claiming that he was in a relationship with
the victim. The appellant had claimed that, the appellant has
a laptop containing semi-nude photos of the victim. Appellant
had brought such laptop. Father of the appellant was called
by PW 33 who requested PW 33 not to take any legal steps. He
has stated that, the victim was taken on speaker mode in the
mobile phone when, the victim stated that although there was
a relationship, she did not want to continue with the same
any further. After hearing the same from the victim, all
present in the meeting had asked the appellant to delete the
33
pictures of the victim which was done. After few days, father of
the victim had told him that the victim was complaining that
the appellant was disturbing her. On May 2, 2022 he had
heard from other people that the victim was murdered. He has
identified the appellant in Court.
58. The then inspector in charge of the Khagra Town Post
has deposed as PW 34. He has stated that, he was the
investigating officer of the case. He has narrated the course of
the investigation. He has tendered various documents at the
trial which were marked as exhibits. Although the defence has
cross-examined him at length no fruitful material was
extracted out of such cross-examination.
59. The appellant has been examined under Section 313 of
the Criminal Procedure Code on the conclusion of the
evidence of the prosecution. As many as 555 questions have
been put to the appellant during his examination under
section 313 of the Criminal Procedure Code.
60. In course of his examination under Section 313 of the
Criminal Procedure Code, the appellant has taken the stand
that he did not know anything about the incident and that, he
34
was falsely implicated. He has declined to produce any
evidence in his support.
61. Exhibit 1 being the post-mortem report of the victim
and the deposition of the post-mortem doctor being PW 1 have
established that the victim was murdered. PW 1 had found 45
injuries on the body of the victim during post-mortem.
According to him, four injuries suffered by the victim were
defence wounds arising out of the resistance of the victim
while two other injuries suffered by the victim may have been
due to the victim falling on the ground.
62. Prosecution therefore has been able to prove beyond
reasonable doubt that the victim was murdered.
63. PW 2 and 3 are witnesses who have seen the incident
of murder of the victim. Both of them have corroborated each
other with regard to the incident. Both of them have described
the incident as the appellant repeatedly stabbing the victim in
front of the gate of the house belonging to PW 4 at about 6:30
PM on May 2, 2022. Both of them have stated that, their
attempt to rescue the victim was thwarted by the appellant by
brandishing a gun. The appellant had fled the place of
occurrence. Both of them have seen each other at the place of
35
occurrence. Both of them had identified the appellant as the
assailant in Court. Defence has not been able to point out any
material discrepancy with regard to the testimonies of PW 2
and 3 implicating the appellant in the two charges against
him.
64. The knife used by the appellant had been seized and
marked as Exhibit 1. The gun that the appellant had
brandished at the place of occurrence was also seized and was
subsequently found to be a toy gun. Such gun has also been
tendered in evidence and marked as an exhibit.
65. PW 2 had video graphed a portion of the incident. PW
3 has corroborated the fact that, PW 2 had video graphed the
incident. The fleeing away by the appellant had been recorded
by a CCTV of a Durga Puja committee which was tendered in
evidence.
66. Police had seized the CCTV footage of the Durga Puja
committee and showed the same to PW 20 who identified the
appellant. Victim and PW 20 were in a relationship and the
victim had confided in PW 20 as to her relationship with the
appellant and showed the photo of the appellant to him. Sister
36
of the victim has acknowledged that there was a relationship
between PW 20 and the victim.
67. Police had set up Naka checking at different places. In
one of such places, the appellant had been found. The driver
of the vehicle from which, the appellant was found has
identified the appellant and stated that the police took the
appellant from his vehicle at a Naka checking. He has also
stated that, along with the appellant there was a bag.
68. Police had taken the appellant to a police station
where, the bag with the appellant was searched. In such bag,
the knife, toy gun, wearing apparel of the appellant along with
other materials were found and seized. Seized Articles had
been sent for forensic. Forensic evidence has implicated the
appellant in the murder of the victim.
69. Appellant has relied upon Dharkole (supra) to
contend that, since, all other persons present at the place of
occurrence and at the time of occurrence, were not examined
by the prosecution, the veracity of the case of the prosecution
should be doubted.
70. We are not in a position to accept such contentions on
behalf of the appellant, in the facts and circumstances of the
37
present case. Dharkole (supra) has held that, non-
examination of any particular person as witnesses would not
affect the prosecution case when the witnesses examined by
the prosecution withstood the cross-examination and pointed
to the guilt of the accused.
71. It is trite law that, Court is not concerned with the
quantity of the evidence but the quality thereof. In the facts
and circumstances of the present case, PW 2 and PW 3
narrated the incident implicating the appellant in the murder
of the victim. There is no material on record which suggest
that, the veracity of such testimonies has to be doubted.
72. Arjun Panditrao Khotkar (supra) has overruled a
previous decision of the Supreme Court and clarified another
with regard to section 65A and 65B of the Indian Evidence
Act, 1872 and distinguished between the primary and
secondary evidence, electronic records/documents and how
the same can be produced in Court and proved. Even for the
sake of argument, if we are to overlook the CCTV footage, then
also, the testimonies of the 2 eyewitnesses namely PW 2 and
PW 3 have implicated the appellant in the murder of the
victim conclusively.
38
73. We clarify that, we have not held that, the CCTV
footage or any other electronic material which the learned trial
Court was pleased to consider were not proved in accordance
with the Evidence Act, 1872 and therefore, should not be
relied upon.
74. In our view, prosecution has been able to establish
that the appellant murdered the victim, and that, he tried to
evade arrest by brandishing a toy gun, conclusively. Both the
charges as against the appellant have been conclusively
established at the trial.
75. We have to consider the quantum of punishment
imposed by the learned trial Court on the appellant on the
basis of the decisions of Courts relating to the death penalty.
76. Bachan Singh (supra) has answered a reference with
regard to the constitutional validity of death penalty for
murder provided in section 302 of the Indian Penal Code and
the sentencing procedure embodied in subsection (3) of
section 354 of the Code of Criminal Procedure, 1973. It has
held that, death penalty for its execution cannot be regarded
as unreasonable, cruel or unusual punishment, nor can it be
said to defy the dignity of the individual within the preamble
39
of the Constitution. It has also held that, on parity of
reasoning, it cannot be said that death penalty violates the
basic structure of the Constitution.
77. Bachan Singh (supra) has held that, the extreme
penalty of death need not be inflicted except in grievous cases
of extreme culpability. Before opting for the death penalty the
circumstances of the offender is required to be taken into
consideration along with the circumstances of the crime. Life
imprisonment is the rule and death sentence is an exception.
Death sentence must be imposed only when life imprisonment
appears to be an altogether inadequate punishment having
regard to the relevant circumstances of the crime, and
provided, the option to impose sentence of imprisonment for
life cannot be conscientiously exercised having regard to the
nature and circumstances of the crime and all the relevant
circumstances. A balance sheet of aggravating and mitigating
circumstances has to be drawn up and in doing so the
mitigating circumstances have to be accorded full weightage
and a just balance has to be struck between the aggravating
and mitigating circumstances before the option is exercised.
40
78. Machhi Singh (supra) has laid down guidelines/test
to determine the rarest of rare cases in which death sentence
can be inflicted. It has taken note of Bachan Singh (supra)
and the proposition laid down therein. It has held that, the
guidelines indicated in Bachan Singh (supra) have to be
applied. In order to apply such guidelines, 2 questions may be
asked and answered. Firstly, is there something uncommon
about the crime which renders sentence of imprisonment for
life inadequate and calls for a death sentence. Secondly are
the circumstances of the crime such that there is no
alternative but to impose death sentence even after recording
maximum weightage to the mitigating circumstances to speak
in favour of the offender. If only after taking a global view of
the circumstances in light of the propositions noted therein,
and taking into account the answers to the questions posed,
the circumstances of the case are such that that sentence is
warranted, the Court may proceed to do so.
79. Santosh Kumar Satishbhushan Bariyar (supra) has
held that, not only the doctrine of proportionality but also the
doctrine of rehabilitation should be taken into consideration,
particularly in view of section 354 (3) of the Criminal
41
Procedure Code, which must be read with Article 21 of the
Constitution of India, in deciding whether or not to award
death penalty. It has held that, where there was nothing to
show that the accused could not be reformed and
rehabilitated, the manner of disposal of the body of the
deceased, howsoever abhorrent, by itself is not sufficient to
bring the case in the rarest of rare category.
80. In Rameshbhai Chandubhai Rathod (supra) death
sentence awarded to a 27 year old for rape and murder had
been commuted to life imprisonment, in the facts and
circumstances of that case.
81. Rajendra Pralhadrao Wasnik (supra) has upheld a
death penalty for the accused in respect of rape and murder of
a child aged 3 years by a married person aged 31 years. It has
noted the heinous, brutal and inhuman crime committed. It
has also noted that, the convict was holding the child in a
relationship of trust belief and confidence. The convict had left
the child in badly injured condition in open field reflecting on
the unfortunate and abusive facet of human conduct. Convict
has been found to give bites on the chest of the minor. Pain
and agony that the convict must have caused to the deceased
42
minor was taken into account. No mitigating circumstances
having been found in favour of the convict; penalty of death
imposed was not interfered with.
82. Finding no mitigating circumstances Sunil Baban
Pingale (supra) has also upheld the death penalty awarded.
83. In Shankar Kisanrao Khade (supra) death penalty
for murder by strangulation after repeated rape and
sodomisation of a minor girl of 11 years with intellectual
disability has been commuted to life imprisonment although,
the crime test, criminal test and the rarest of rare cases test
being satisfied on the ground that, there was no past criminal
record against the accused.
84. Shankar Kisanna Khade (supra) has considered
Bachan Singh (supra), Machi Singh (supra) as well as
Rajendra Pralhadrao Wasnik (supra) amongst other
authorities and observed as follows: –
“49. In Bachan Singh [Bachan Singh v. State of Punjab,
(1980) 2 SCC 684 : 1980 SCC (Cri) 580] and Machhi
Singh [Machhi Singh v. State of Punjab, (1983) 3 SCC 470 :
1983 SCC (Cri) 681] cases, this Court laid down various
principles for awarding sentence : (Rajendra Pralhadrao
case [Rajendra Pralhadrao Wasnik v. State of Maharashtra,
(2012) 4 SCC 37 : (2012) 2 SCC (Cri) 30] , SCC pp. 47-48, para
33)
43“‘Aggravating circumstances — (Crime test)
(1) The offences relating to the commission of heinous crimes
like murder, rape, armed dacoity, kidnapping, etc. by the
accused with a prior record of conviction for capital felony or
offences committed by the person having a substantial history of
serious assaults and criminal convictions.
(2) The offence was committed while the offender was
engaged in the commission of another serious offence.
(3) The offence was committed with the intention to create a
fear psychosis in the public at large and was committed in a
public place by a weapon or device which clearly could be
hazardous to the life of more than one person.
(4) The offence of murder was committed for ransom or like
offences to receive money or monetary benefits.
(5) Hired killings.
(6) The offence was committed outrageously for want only
while involving inhumane treatment and torture to the victim.
(7) The offence was committed by a person while in lawful
custody.
(8) The murder or the offence was committed to prevent a
person lawfully carrying out his duty like arrest or custody in a
place of lawful confinement of himself or another. For instance,
murder is of a person who had acted in lawful discharge of his
duty under Section 43 of the Code of Criminal Procedure.
(9) When the crime is enormous in proportion like making an
attempt of murder of the entire family or members of a particular
community.
(10) When the victim is innocent, helpless or a person relies
upon the trust of relationship and social norms, like a child,
helpless woman, a daughter or a niece staying with a
father/uncle and is inflicted with the crime by such a trusted
person.
44
(11) When murder is committed for a motive which evidences
total depravity and meanness.
(12) When there is a cold-blooded murder without
provocation.
(13) The crime is committed so brutally that it pricks or
shocks not only the judicial conscience but even the conscience
of the society.
Mitigating circumstances — (Criminal test)
(1) The manner and circumstances in and under which the
offence was committed, for example, extreme mental or
emotional disturbance or extreme provocation in
contradistinction to all these situations in normal course.
(2) The age of the accused is a relevant consideration but not
a determinative factor by itself.
(3) The chances of the accused of not indulging in commission
of the crime again and the probability of the accused being
reformed and rehabilitated.
(4) The condition of the accused shows that he was mentally
defective and the defect impaired his capacity to appreciate the
circumstances of his criminal conduct.
(5) The circumstances which, in normal course of life, would
render such a behaviour possible and could have the effect of
giving rise to mental imbalance in that given situation like
persistent harassment or, in fact, leading to such a peak of
human behaviour that, in the facts and circumstances of the
case, the accused believed that he was morally justified in
committing the offence.
(6) Where the court upon proper appreciation of evidence is of
the view that the crime was not committed in a preordained
manner and that the death resulted in the course of commission
of another crime and that there was a possibility of it being
45construed as consequences to the commission of the primary
crime.
(7) Where it is absolutely unsafe to rely upon the testimony of
a sole eyewitness though the prosecution has brought home the
guilt of the accused.’ [Ed. : As observed in Ramnaresh v. State of
Chhattisgarh, (2012) 4 SCC 257, pp. 285-86, para 76.] “”
“52. Aggravating circumstances as pointed out above, of
course, are not exhaustive so also the mitigating circumstances.
In my considered view, the tests that we have to apply, while
awarding death sentence are “crime test”, “criminal test” and
the “R-R test” and not the “balancing test”. To award death
sentence, the “crime test” has to be fully satisfied, that is, 100%
and “criminal test” 0%, that is, no mitigating circumstance
favouring the accused. If there is any circumstance favouring
the accused, like lack of intention to commit the crime, possibility
of reformation, young age of the accused, not a menace to the
society, no previous track record, etc. the “criminal test” may
favour the accused to avoid the capital punishment. Even if both
the tests are satisfied, that is, the aggravating circumstances to
the fullest extent and no mitigating circumstances favouring the
accused, still we have to apply finally the rarest of the rare case
test (R-R test). R-R test depends upon the perception of the
society that is “society-centric” and not “Judge-centric”, that is,
whether the society will approve the awarding of death
sentence to certain types of crimes or not. While applying that
test, the court has to look into variety of factors like society’s
abhorrence, extreme indignation and antipathy to certain types
of crimes like sexual assault and murder of intellectually
challenged minor girls, suffering from physical disability, old
and infirm women with those disabilities, etc. Examples are
only illustrative and not exhaustive. The courts award death
sentence since situation demands so, due to constitutional
46compulsion, reflected by the will of the people and not the will of
the Judges.”
85. The Calcutta authorities have commuted death penalty
to one of life imprisonment, in the facts and circumstances of
those cases.
86. In the facts and circumstances of the present case, the
appellant has assaulted the victim repeatedly with a knife
causing her death. Apparently, there was a relationship
between the appellant and the victim at a given point of time
and that, the victim had come out of such relationship. The
victim had also entered into a relationship with another
person to the knowledge of the appellant.
87. It has come out from the testimonies of the father of
the victim, her sister and the new person with whom, the
victim developed a relationship that, the appellant was
threatening the victim with regard to the new relationship.
88. It has been contended on behalf of the appellant that,
the act of murder was an act of passion done on the spur of
the moment and that, a lenient view should be taken.
89. In the facts and circumstances of the present case, we
are not in a position to subscribe to the view that, the assault
on the victim was on the spur of the moment. Appellant had
47
purchased a toy gun to stave off any intervenors when he
would be murdering the victim. Appellant had also got himself
the knife. Materials on record established that, appellant had
planned the murder. The victim had suffered 45 stab injuries.
The appellant did not let go of the victim despite the victim
trying to defend herself and suffering defence wounds, falling
to the ground and suffering further wounds and, persons
present at the place of occurrence trying to intervene to save
the victim from the appellant. The appellant had prevented PW
2 and PW 3 amongst others to save the victim from the
assault. Manner of murder is gruesome.
90. We have to decide on the quantum of punishment for
the murder committed by the appellant on the parameters of
the crime test, criminal test and the rarest of rare cases test.
On the aspect of the crime test or aggravating circumstances,
materials on record have not established that, there was any
previous criminal record of the appellant. There however was
a complaint to the police lodged at the behest of the victim as
against the appellant which has not reached any logical
conclusion till date. At least nothing has been placed on
record to establish that the earlier complaint as against the
48
appellant, reached any conclusion in Court. Prosecution has
not established that, the appellant committed the offence of
murder while engaged in the commission of another serious
offence or that the offence has been committed with the
intention to create a fear psychosis in the public at large or
committed for money or to receive money or monetary
benefits. Briefly stated, the aggravating circumstances as
against the appellant cannot be classified as 100%.
91. Similarly, so far as the criminal test or the mitigating
circumstances are concerned, we are not in a position to
arrive at a finding that it is 0% as against the appellant. Age of
the appellant is in favour of the appellant. The nature of crime
cannot be classified as rarest of rare cases.
92. By an order dated May 1, 2025 we had called upon
the State to report on the condition of the appellant in terms
of the guidelines laid down in 2023 Volume 2 Supreme
Court Cases 353 (Manoj and others versus State of M.P).
State has done so. State has not been able to place any
material before us to suggest that, the appellant is beyond
reformation.
49
93. Manoj and others (supra) has noticed various
authorities on the issue of imposition of death penalty.
Amongst others, it has noticed 2008 Volume 13 Supreme
Court Cases 767 (Swamy Shraddananda (2) versus State
of Karnataka) and 2016 Volume 7 Supreme Court Cases 1
(Union of India versus V. Sriharan). It has observed that
Court must arrive at a finding that the option of life
imprisonment is unquestionably foreclosed owing to an
impossibility of reformation to award death penalty.
94. Swamy Shraddananda (2) (supra) has held that,
Supreme Court can commute a death sentence to one of life
imprisonment and prescribe the actual term of imprisonment
to be undergone by the convict without the same being subject
to remission/commutation by the executive under the
provisions of the Criminal Procedure Code, Prisons Acts and
rules framed by different States.
95. With regard to the issue of sentencing is concerned,
Swamy Shraddananda (2) (supra) has observed as follows: –
“92. The matter may be looked at from a slightly different
angle. The issue of sentencing has two aspects. A sentence may
be excessive and unduly harsh or it may be highly
disproportionately inadequate. When an appellant comes to this
50Court carrying a death sentence awarded by the trial court and
confirmed by the High Court, this Court may find, as in the
present appeal, that the case just falls short of the rarest of the
rare category and may feel somewhat reluctant in endorsing the
death sentence. But at the same time, having regard to the
nature of the crime, the Court may strongly feel that a sentence
of life imprisonment subject to remission normally works out to a
term of 14 years would be grossly disproportionate and
inadequate. What then should the Court do? If the Court’s option
is limited only to two punishments, one a sentence of
imprisonment, for all intents and purposes, of not more than 14
years and the other death, the Court may feel tempted and find
itself nudged into endorsing the death penalty. Such a course
would indeed be disastrous. A far more just, reasonable and
proper course would be to expand the options and to take over
what, as a matter of fact, lawfully belongs to the Court i.e. the
vast hiatus between 14 years’ imprisonment and death. It needs
to be emphasised that the Court would take recourse to the
expanded option primarily because in the facts of the case, the
sentence of 14 years’ imprisonment would amount to no
punishment at all.”
96. Constitution Bench in V. Sriharan (supra) has noted
Swamy Shraddananda (2) (supra) and held, awarding of the
special category sentence, in substitution of death sentence,
that is, sentence barring remission under statute such as
Criminal Procedure Code for specified term beyond 14 years,
or life imprisonment barring remission for rest of life, is valid.
It has however clarified that, powers of remission under
Article 72 and 161 of the Constitution are not affected, as they
51
are not studied. It has clarified that; such powers of
sentencing can however be exercised by a constitutional
Court.
97. Crime test and criminal test having ruled out
upholding the death penalty, the quantum of sentence, in
light of the ratio of Swamy Shraddananda (2) (supra) and V.
Sriharan (supra) requires consideration. As has been noted
above, appellant had pre planned the murder. He had
prepared himself with the murder weapon as also toy gun to
stave off any interference while he was out and about
committing the crime. He has inflicted 45 wounds on the
victim. He did not let go the victim despite the victim falling to
the ground and persons trying to intervene to save the victim.
He has demonstrated sufficient quantum of depravity in the
commission of the crime so as to warrant invocation of the
ratio of the two authorities noted in this paragraph. Report of
the State raises questions as to the mental health of the
appellant.
98. The date of birth of the appellant is November 2, 2001
as appearing from the report submitted in Court pursuant to
the order dated May 1, 2025. As on the date of commission of
52
the crime, the age of the appellant was about 21 years. Today,
he would be about 24 years.
99. Taking into consideration the entire facts and
circumstances of the present case including the ratio of the
authorities relating to death penalty as also sentence of life
imprisonment without remission, in our view, interest of
justice would be subserved by commuting the death penalty to
one of life imprisonment without the possibility of remission
for another 40 years from the date of arrest of the appellant.
The appellant shall also pay a fine of Rs. 50,000/-, in default
to suffer rigorous imprisonment for five years more for the
offence punishable under section 302 of the Indian Penal
Code.
100. So far as the sentence awarded with regard to the
Arms Act is concerned, by the learned trial Court, the same is
upheld.
101. The period of detention suffered by the appellant
during investigation, enquiry and trial hall be set off from the
substantive sentence imposed upon him in terms of Section
428 of the Criminal Procedure Code.
102. Both the sentences will run concurrently.
53
103. A copy of the judgement and order along with the trial
court records be remitted to the jurisdictional court forthwith.
104. DR 7 of 2023 along with CRA (DB) 349 of 2023 are
disposed of accordingly.
[DEBANGSU BASAK, J.]
105. I agree.
[MD. SHABBAR RASHIDI, J.]
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