Calcutta High Court (Appellete Side)
State Of West Bengal vs Samar Patra on 26 June, 2025
Author: Debangsu Basak
Bench: Debangsu Basak
IN THE HIGH COURT OF CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Debangsu Basak
And
The Hon'ble Justice Md. Shabbar Rashidi
DEATH REFERENCE NO. 01 OF 2023
STATE OF WEST BENGAL ... APPELLANT
Vs.
SAMAR PATRA ... RESPONDENT
With
C.R.A. (DB) 86 Of 2023
SAMAR PATRA … APPELLANT
Vs.
STATE OF WEST BENGAL … RESPONDENT
For the Appellants : Mr. Soumik Ganguli, Adv.
Mr. Supriyo Shasmal, Adv.
For the State : Mr. Debasish Roy, Ld. P.P.
Mr. Rudradipta Nandy, Ld. APP
Mr. Santanu Talukdar, Adv.
Hearing Concluded on : 10.06.2025
Judgment on : 26.06.2025
sk sohel Digitally signed by sk
sohel uddin
uddin Date: 2025.06.26
11:22:52 +05'30'
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MD. SHABBAR RASHIDI, J.:-
1. Death Reference and the Appeal is directed against judgment of
conviction dated March 21, 2023 and the order of sentence dated
March 22, 2023 passed by learned 2nd Additional Sessions Judge,
Kakdwip, in Sessions Trial No. 204 (8) of 2018 arising out of CIS
Session Trial No. 55 of 2018.
2. By the impugned judgment of conviction, the appellant was
convicted for the offence punishable under Section 302 of the Indian
Penal Code. By the impugned order of sentence, the convict was
sentenced to death penalty with a fine of ₹5,000/- and in default of
payment of fine, the convict was directed to undergo rigorous
imprisonment for a further period of 6 months.
3. The manager of Hotel Moumita, Bakkhali, lodged a written
complaint with the Frazerganj police station on April 12, 2018, stating
interalia, that on April 11, 2018 at about 3.00 in the evening, two
persons being the appellant Samar Patra and one Durga Rani Majhi
Barui checked in his hotel in Room No. 5 by producing copy of Voter’s
Identity Card as identity proof. On the following day i.e. April 12,
2018, the room boy of the hotel informed the de facto complainant
that Room No.5 was closed from inside and no one was opening the
room. In such situation, the de facto complainant informed the police.
On arrival of police, the door of the room was broke open whereupon,
it was discovered that the girl was lying dead on the bed. The boy was
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not there. The window of the bathroom was found devoid of glasses.
The de facto complainant also stated in the written complaint that
there was a thick black glass mark on the neck of the girl. According
to him, the boy killed the lady by strangulation and fled away by
removing the window glasses of the bathroom.
4. On the basis of such written complaint, Frazerganj Police
Station Case No. 30/2018 dated April 12, 2018 under Section 302 of
the Indian Penal Code was started against the appellant named in the
First Information Report. Police conducted investigation of the case
and on completion thereof, submitted charge sheet against the
appellant. Accordingly, on the basis of materials in the case diary,
charge under Section 302 of the Indian Penal Code was framed
against the appellant on August 28, 2018. The appellant pleaded not
guilty to the charge and claimed to be tried.
5. It was submitted by learned advocate representing the appellant
that the prosecution has not been able to bring home the charge
framed against the appellant beyond all reasonable doubts, sufficient
enough to secure his conviction. He further submitted that there are
material contradictions in the evidence adduced on behalf of the
prosecution vis-à-vis the witnesses per se as well as the case made out
in the written complaint telling upon the veracity of the case of the
prosecution.
4
6. Referring to the evidence of PW 3, learned advocate for the
appellant submits that as per the case made out in the first
information report, the appellant is said to have fled away removing
the glasses of the bathroom window whereas, PW 3 in his deposition,
speaks of ventilator. It was also submitted that the finger print expert
went to the place of occurrence after several days of the incidence and
was able to develop two chance finger prints of the appellant on a
drinking glass. Learned advocate for the appellant submitted that
recovery of chance finger prints on April 4, 2018 where the incident
took place on April 12, 2018 is suspicious and doubtful.
7. Learned advocate for the appellant also submitted that the
prosecution had failed to produce the CCTV footage of the place of
occurrence at the trial which raises doubts with regard to involvement
of the appellant in the incidence of murder of the victim. Learned
advocate for the appellant also submitted in reference to the evidence
of PW2 that such witness cannot be trusted. He has made
contradictory statements. In his deposition, such witness had stated
to have seen the window of the bathroom in broken condition but
subsequently, he made a statement that the glass of such window was
found to be broken.
8. Learned advocate for the appellant also contended that in view
of the quality of evidence led at the trial as well as in consideration of
the facts and circumstances brought forth, the case does not fall
5
within the category of ‘rarest of rare case’ and as such, death penalty
imposed upon the appellant is not sustainable. To such proposition,
learned advocate for the appellant relied upon (2023) 2 Supreme
Court Cases 353 (Manoj and Others Vs. State of Madhya Pradesh)
and (1980) 2 Supreme Court Cases 684 (Bachan Singh Vs. State
of Punjab).
9. Per contra, learned advocate for the State submitted that the
prosecution has been able to prove the charge beyond iota of any
doubt with the help of overwhelming evidence. He submitted that the
learned trial court was quite justified in passing the impugned
judgment of conviction and sentencing the appellant to death penalty.
10. In order to bring home the charges, prosecution examined 16
witnesses. In addition, prosecution also relied upon several
documentary as well as material evidences.
11. The de facto complainant deposed as PW 1. He identified the
appellant in court. He stated that he lodged a written complaint with
Frazergunj coastal police station on April 12, 2018. He proved the
written complaint written by the owner of Moumita Hotel and his
signature thereon. He also proved his signature on the formal First
Information Report. PW 1 also stated that on April 11, 2018 the
appellant and one Durgar Barui @ Majhi checked into Moumita hotel
at about 3.00/3.30 p.m. and stayed in room No. 5. On the said date,
at about 9.30/10.00 p.m. dinner was served in their room by the hotel
6
boy Jagannath Ghosh. On the following morning at about 9.00 a.m.
the hotel staff knocked on the door of room No. 5 as a daily routine.
However, the door of the room was not opened. Thereafter, PW 1
personally went to Frazergunj coastal police station and informed the
matter to the police. On such information police accompanied PW 1 to
the hotel and opened the door of room No. 5 by breaking it in his
presence.
12. PW 1 also stated in his deposition that upon breaking open the
door of room No. 5 of the hotel, the body of Durgarani Barui was
found lying on the bed and the ventilation of the attached toilet of that
room was found in broken condition. The appellant could not be found
there in the room. He also stated that the victim was found dead
having a black colour ligature mark on the neck of the dead body
which, according to PW 1, was caused by means of an ‘orna’.
Thereafter, PW 1 accompanied by Jagannath Ghosh went to the police
station. The dead body of the victim was also brought to the police
station. The owner of the hotel was called upon who scribed the
written complaint as per the instructions of PW 1. PW 1 also stated
that his statement was recorded by learned Magistrate. He proved
such statement. He also identified the appellant put on test
identification parade. PW 1 was cross-examined on behalf of the
defense, however, nothing favourable could be elicited in such cross-
examination.
7
13. An employee of the hotel deposed as PW 2. In his deposition, he
stated that on April 11, 2018 he was an employee of Moumita hotel.
He identified the appellant in court. He further stated that the
appellant committed murder of Durgarani Majhi for which the
manager of the hotel lodged a written complaint. PW 2 also stated that
on April 11, 2018, the appellant accompanied by Durgarani Majhi
came to Moumita hotel and stayed in room No. 5. He also stated that
at about 9.30 p.m. he served dinner to them and after finishing his
daily work, he went to sleep in his room.
14. PW 2 further stated that on the following morning at about 10.
00 a.m. he went to room No. 5 to serve morning tea. He knocked the
door but it was not open from inside. For such reason, the manager of
the hotel i.e. PW 1 informed the matter to Frazergunj coastal police
station. Following such information, police arrived in the hotel and
opened the door of room No. 5 by breaking the door in the presence of
PW 2. He further stated that after opening of the door he noticed that
one wine bottle, glass and one mobile charger were lying inside the
room and the dead body of Durgarani Majhi was lying on the bed. The
door of the attached bathroom was opened and PW 2 could notice that
the window of the bathroom was in broken condition. The appellant
was not found either inside the room or in the bathroom. He also
stated that the window of the room was covered with glass and the
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said glass was in broken condition. PW 2 proved his signature on the
seizure list dated April 12, 2018.
15. PW 2 also stated that the police took away the dead body of
Durgarani Majhi initially to the police station and thereafter it was
sent to Dwarikanagar hospital. PW 2 accompanied the dead body to
the hospital. He also stated that the police conducted inquest over the
dead body. He proved his signature on such inquest. PW 2 also stated
that his statement was recorded by learned Magistrate which he
proved. He also identified the appellant put on test identification
parade. This witness was also cross-examined on behalf of the
appellant at length.
16. The owner of Moumita Hotel deposed as PW3. He stated that on
April 12, 2018, at about 10.00/10.30 a.m. the manager of his hotel
i.e. PW1, informed him over telephone that the door of room No. 5 of
the hotel was not opening. PW 3 advised him to inform the matter to
police. He further stated that after about half an hour, PW 1 again
informed him that the door was opened by breaking it and that one
lady Durgarani Majhi was murdered whose dead body was lying inside
room no. 5. Hearing this, PW 3 went to Frazerganj coastal police
station and found the manager as well as one staff of the hotel
Jagannath Ghosh i.e. PW 1 and PW 2 in the police station. He scribed
the written complaint there at the instructions of his manager Supriya
Halder. He proved his signature on such written complaint.
9
17. PW 3 also stated that one wine bottle, a pair of ear rings, towel
and other articles were seized by the police under a seizure list. PW 3
identified the seized articles in court. He proved his signatures on
such seizure list as well as labels attached to seized articles. In his
cross examination, PW 3 stated that the glasses used in the ventilator
were intact. The height of the room of room No. 5 was 10 feet and the
ventilator was placed two feet from the roof. The frame of ventilator
was made of woods.
18. An owner of adjoining hotel was examined by the prosecution
as PW 4. He stated that CCTV footage installed in his hotel was seized
by police on June 26, 2018 under a seizure list to which he signed. He
proved his signature on the seizure list. He also stated to have heard
that one lady was found dead in the adjoining Moumita hotel. He
claimed to identify the lady through CCTV footage. PW4 was declared
hostile by the prosecution and in his cross examination on behalf of
prosecution; he denied having made any statement before the police in
connection with the case.
19. The autopsy surgeon deposed as PW 5. He stated that he
conducted post mortem examination on the dead body of the victim on
April 14, 2018. He described the injuries found on the dead body
during such examination. According to PW 5, upon post mortem
examination he found:
10
1. One transversely placed continuous ligature mark measuring
12 ½ x 1 inch placed low down around the neck being placed 2
inch about supra sternal knotch in the front and 5 inch below
external occipital protuberance on the back 3 inch below angles
of mandible and 3 ½ inch below tip of mastoid process on either
side with one abrasion 1inch x ½ inch on the middle part of
neck.
The skin under the ligature mark was brownish,
parchmentized, abraded and contused on dissection the
subcutaneous tissues under the ligature mark is contused and
torn at places with extensive extravasation of blood.
Extravasation of blood 2 inch x 3 inch defuse in soft tissues on
low middle part of anterior aspect of neck.
Fracture of thyroid ala on left side.
Bruise 2 inch x ½ inch over left eyebrow.
Scalp hematoma 3 inch x 4 inch of left side and 2 inch x 3 inch
on right side of parietal bone.
Extradural hemorrhage, 2 inch x 2 inch over left side of parietal
bone.”
20. PW 5 observed that all the injuries showed signs of vital
reactions and that the abrasions were non-scabbed. He opined that
the death of the victim was caused due to the effects of strangulation
by ligature which were ante mortem and homicidal in nature. PW 5
proved the post mortem report prepared in his pen and signature
which was admitted in evidence as Exhibit 10. Based on his
examination, PW 5 also opined that the strangulation was caused by
using soft materials like any cloth, sari, orna, gamcha etc. in his cross
11
examination, PW 5 denied a suggestion advanced to him that the
death was caused due to hanging.
21. The manager of an adjoining hotel was examined as PW 6. He
stated that he was the manager of Hotel Rainbow at Bakkhali where
he has been working for the last 10 years. He also stated that the
incident took place at Moumita hotel which is at a distance of 2
minutes’ walk from his hotel. He heard that a woman was murdered in
Moumita hotel. After ¾ days of the incident, police came to Rainbow
hotel and seized CCTV footage of his hotel. PW 6 also stated that the
police again visited Moumita hotel along with the accused. The
appellant/accused brought out a mobile set and Vodafone SIM from a
place outside a local window of the bathroom of the said hotel and
handed over the same to the police. Such articles were seized by police
under a seizure list. PW 6 proved his signature on such seizure list.
22. PW 7 collected the viscera of a dead body on May 29, 2018 and
handed it over to the investigating officer of the case. It was seized by
the investigating officer. PW 7 proved his signature on such seizure
list.
23. PW 8 is another witness to the seizure list through which
viscera of the dead body of the victim was seized by police on May 29,
2018. He proved his signature on the seizure list.
24. PW 9 and PW 10 did not add any value to the case of the
prosecution. They had no knowledge about the incident.
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25. A neighbour of the victim was examined as PW 11. She stated
that one Ram Barui was his neighbour who was the father of the
victim. PW 11 was called upon by the said Ram Barui 4/5 years ago
(from November 30, 2022) in the morning at Dwarikanagar BPHC.
Accordingly he accompanied the father of the victim to Dwarikanagar
BPHC. He also stated that the father of the victim identified the dead
body of the victim in the morgue in his presence and he signed on
such document. PW 11 proved his signature on such document.
26. The nephew of the father of the victim deposed as PW 12. He
has stated that Ram Barui, the father of the victim, was his uncle and
the victim was his daughter. One morning about 4/5 years ago, the
said Ram Barui called PW 12 to Dwarikanagar BPHC and accordingly
he accompanied him. He also stated that the dead body of the victim
was identified by Ram Barui and he signed on such document which
he proved. He however, could not say as to how the victim died.
27. The police personnel deposed as PW 13. He stated, in his
deposition, that on April 12, 2018 he conducted inquest over the dead
body of one Durgarani Majhi in connection with Namkhana PS UD
case No. 12/18 dated April 12, 2018. PW 13 prepared a report in this
regard which he proved. After conducting the inquest, he forwarded
the dead body to Kakdwip SD hospital through the constable Gopal
Das. He proved the dead body Chalan. He also proved the certified
copy of information with regard to recovery of a dead body from
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Dwarikanagar rural hospital. He also collected the post-mortem report
and handed over the same to CVF Shibnath Pradhan in connection
with Frazergunj Coastal PS case No. 30/18 dated April 12, 2018. He
proved the Chalan of such handing over.
28. The officer in charge of Fingerprint bureau deposed as PW 14.
He stated that on April 13, 2018 Frazergunj PS sent a requisition for
rendering the services of fingerprint expert in connection with
Frazergunj PS case No. 30/18 dated April 12, 2018 addressed to the
Director, Fingerprint Bureau, CID, West Bengal. In compliance to the
directions of the Director of CID, PW 14 visited the place of occurrence
at Moumita hotel, room No. 5 being accompanied by a departmental
photographer Sujit Chakraborty and examined the place of
occurrence. During examination, PW 14 was able to develop two
chance fingerprints on a drinking glass which were marked and
encircled by him in presence of witness Subhash Chandra Majhi. PW
14 identified the said glass bearing encircled Mark with his signature
as also that of the witness in court. He also proved the photographs
and negatives of the developed finger prints taken by the CID
photographer. The aforesaid articles were marked as material exhibits.
29. PW 14, thereafter, received 10 numbers of specimen finger
prints of the appellant/accused from the investigating officer of the
case which were obtained by such investigating officer in presence of
learned Judicial Magistrate. He proved the requisition to such effect.
14
Thereafter, PW 14 proceeded to examine and compare the chance
finger prints and specimen finger prints. On such examination, he
found one of the chance finger prints matching with the specimen
finger print. The other chance finger print was found by him to be
unfit for comparison. On the basis of his examination, a report was
prepared under the pen and signature of the Director, Fingerprint
Bureau which was sent under a memo. PW 14 proved such report
(Exhibit 17) as well as the memo of transmitting the report (Exhibit
18).
30. The learned Judicial Magistrate deposed as PW 15. On April 23,
2018, he recorded the statements of witnesses under Section 164 of
the Code of Criminal Procedure in connection with Frazerganj Coastal
PS Case No. 30 of 2018 dated April 12, 2018. He proved the
statements of witnesses Supriya Halder and Jagannath Ghosh
(Exhibit 3 and Exhibit 6) recorded by him.
31. PW 15 also stated that he conducted Test Identification Parade
in connection with the aforesaid case on May 5, 2018. At such TIP, the
appellant was identified by the witness Supriya Halder and Jagannath
Ghosh. He proved the report of such test identification parade
prepared in his pen and signature (Exhibit 19). He further stated that
the investigating officer of the case took specimen finger prints of the
appellant in his presence and the same were sealed and labelled in his
presence. He proved the specimen finger prints (Exhibit 20).
15
32. The investigating officer of the case was examined as PW 16. He
proved the endorsement of receipt of the written complaint and the
formal First Information Report filled up by ASI Debasis Ganguli
(Exhibits 1/B and Exhibit 2/2). He was endorsed with the
investigation of Frazerganj Coastal PS Case No. 30 of 2018 dated April
12, 2018. Being so endorsed, PW 16 visited the place of occurrence
and prepared rough sketch map thereof with index. He also collected
and seized certain article from room No. 5 of Moumita hotel which
included glass, a bottle of country wine. He identified such seized
articles in court and proved the seizure list.
33. He also narrated various steps taken by him in course of
investigation. He seized several articles like charger, orna, sandals,
towel etc. and identified such articles produced at the trial. He
recorded the statement of witnesses under Section 161 of the Code of
Criminal Procedure, took steps for recording statements of some
witnesses under Section 164 of the Code of Criminal Procedure, sent
requisition for deputing fingerprint expert and placing the appellant on
Test Identification Parade. He sent the dead body for post mortem
examination. He collected the reports of TI parade and post mortem
examination. PW 16 also arrested the appellant and recorded his
statement. On the basis of such statement, the appellant led him to
recovery of the phone and other articles belonging to the victim. He
also arranged for collection of specimen fingerprint of the appellant
16
and sent the same for examination by an expert. He also collected and
seized CCTV footage from an adjoining hotel Rainbow. However, his
requisition for supply of CCTV footage of hotel Moumita was
responded that no such footage was available. He has proved various
requisitions and prayers issued by him. Upon completion of
investigation, PW 16 submitted charge sheet in the case under Section
302 of the Indian Penal Code against the appellant.
34. Upon conclusion of evidence on behalf of the prosecution, the
appellant was examined under Section 313 of the Code of Criminal
Procedure. The evidence and circumstances appearing against the
appellant were placed before him to which, he replied that he had
nothing to say. However, in such examination, in answer to a question
that he along with the victim booked the room No. 5 in hotel Moumita
and stayed there, the appellant admitted that he was there on the date
of incident. He also admitted that he was identified by the witnesses in
the Test Identification Parade.
35. Not only that, in an answer to a question as to if he knew how
the victim died, the appellant answered that in the night of incident,
he along with the victim consumed liquor in the said room. Thereafter,
the victim started crying and the appellant fell asleep. At about 3.00
a.m. he found the victim hanging from the ceiling fan. The appellant
brought the body down and found her dead. Seeing this, he fled away
from the room by breaking the window of the bathroom attached to his
17
room. In answer to another question, the appellant admitted that no
third person entered into the room before death of victim on the
relevant date.
36. The case of the prosecution is that the appellant accompanied
by the victim checked in Hotel Moumita in the evening of April 11,
2018. On the following morning i.e. on April 12, 2018, the dead body
of the victim was found in the room they checked in. The appellant
was found absconding. Police was informed and on arrival of police,
the door of the room was broke open leading to the discovery of dead
body. The dead body was sent to hospital. Post mortem examination
was conducted over the dead body. The post mortem report of the
victim disclosed that the death of the victim was caused by
strangulation by ligature which was ante mortem and homicidal in
nature. The autopsy surgeon was examined as PW5. She testified the
death of the victim and cause thereof on the basis of her examination
of the dead body. She proved such report which was marked as exhibit
10. On the basis of post mortem examination conducted by her, PW 5
also testified that the throttling was done with the help of some soft
material like cloth, sari, gamcha, orna etc.
37. In his examination under Section 313 of the Code of Criminal
Procedure, the appellant has tried to make out a case that when he
woke up in the night of incident, he found the victim hanging with the
fan and he brought down the dead body. However, such case made
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out by the appellant is belied by the testimony of PW 5 and that of
exhibit 10. Therefore, in consideration of the case made out by the
prosecution and also taking into consideration the testimony of PW 5
coupled with that of exhibit 10, it is sufficiently proved that the victim
died an unnatural death which was homicidal in nature.
38. As regards the person responsible for causing the death of the
victim, according to the case set out by the prosecution, both the
victim and the appellant checked into Room No. 5 of the Hotel
Moumita in the evening of April 11, 2018 and stayed there for the
night. PW 2 also deposed to the effect that the victim and the
appellant stayed in the said room in the night and that he served
dinner to them in such night. On the following morning on April 12,
2018, PW 2 reported the de facto complainant, PW1, that the said
room was locked from inside and nobody was responding to the
knocking by the hotel staff. In turn, the PW 1 informed the owner of
the hotel i.e. PW 3 and on his instructions, PW 1 reported the matter
to local Frazerganj Coastal police station. The door of the room was
broke open in presence of the police personnel. Upon opening of the
room, the dead body of the victim was found lying on the bed of the
said room whereas, the appellant was found absconding. The glasses
of the window of the bathroom attached to such room were found
detached.
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39. In order to establish that the appellant accompanied and stayed
with the victim in room No. 5 of hotel Moumita, prosecution relied
upon the testimony of PW 2 who was the hotel boy and he claimed to
have served dinner to the couple in the said room in the evening of
April 11, 2018. Besides, prosecution also relied upon the testimonies
of the owner and manager of adjoining hotel i.e. hotel Rainbow i.e. PW
4 and PW 6. The investigating officer also collected CCTV footage from
such adjoining hotel to prove that the appellant was with the victim in
the night between April 11, 2018 and April 12, 2018. The prosecution
also utilized the services of fingerprint expert PW 14 who successfully
developed a fingerprint from a drinking glass found in room no. 5,
which later matched with the specimen fingerprint of the appellant as
evident from exhibit 17.
40. The appellant was also put on test identification parade and
identified by the witnesses being PW 1 and PW 2 in such parade, as
the person who stayed in room No. 5 of the hotel Moumita with the
victim on the date of incident and later was found absconding from
such room upon discovery of dead body.
41. Although, prosecution produced ample evidence to establish
that the appellant was the person who checked in and stayed with the
victim in room No. 5 of the hotel Moumita on the date of incident and
that he was found absconding on the following morning but the
appellant himself absolved the prosecution of the responsibility of
20
proving such facts. In his examination under Section 313 of the Code
of Criminal Procedure, the appellant admitted that he stayed in the
hotel with the victim in the night between April 11, 2018 and April 12,
2018. Not only that, he also admitted that he slept in the room with
the victim after taking dinner. He woke up in late night to find the
victim hanging from the ceiling fan. He brought down the body of the
victim and found that she was dead. He also testified that being
scared; he fled away detecting death of the victim. Besides that he
further admitted that he absconded from the room upon removing the
glasses of the window of the bathroom attached to the room they
stayed.
42. Such admission on the part of the appellant leaves no suspicion
that the appellant alone was with the victim on the fateful night inside
the room of the hotel they checked in. It is also proved that the death
of the victim occurred when he was with the victim. If that be so, the
appellant cannot be allowed to shrug off his onus to explain the
circumstances under which death of the victim happened in terms of
the provisions of Section 106 of the Indian Evidence Act, 1872.
43. The appellant has set up a case that the when he woke up in
the night, he found the victim was hanging from the ceiling fan. He
brought the hanging body of the victim down. However, being terrified,
he fled away from the room by removing the glasses of the window. As
a man of ordinary prudence, it was expected that the appellant should
21
have called upon the officials of the hotel and reported the matter to
police. Instead, the appellant fled away and that too, not by the door
but by removing the window glasses, leaving the door of the room
locked from inside. The subsequent conduct of the victim tells upon
the authenticity of the case made out by the appellant and the same
cannot be believed at all. Such circumstances, convincingly
establishes the sole hypothesis of the guilt of the appellant to the
exclusion of all others.
44. In such view of facts, we find no reason to interfere with the
impugned judgment of conviction. We affirm the conviction of the
appellant for the offence punishable under Section 302 of the Indian
Penal Code, 1860.
45. So far as imposition of death penalty for such offence is
concerned, it was submitted on behalf of the appellant that the case
does not fall within the category of ‘rarest of rare cases’. According to
learned advocate for the appellant, the learned Trial Court did not
return a conclusive finding that in the facts and circumstances of the
case, the option of awarding any punishment other than death penalty
was foreclosed and would be insufficient.
46. We have considered the medical report of the appellant
obtained in course of hearing of the instant appeal and death
reference. Such report disclosed that the appellant is 33 years of age.
He was diagnosed with chronic cannabis and alcohol addiction before
22
coming to the correctional home. He was however, not found suffering
from any gross psychopathological disorder, though mild fatty change
in liver and nephrolithiasis was detected in the appellant. The doctors
diagnosed the health condition of the appellant as stable and good.
47. In the case of Manoj (supra), referring to Macchi Singh Vs.
State of Punjab, (1983) 3 SCC 470, the Hon’ble Supreme Court
observed that,
“220. In Machhi Singh [Machhi Singh v. State of Punjab, (1983)
3 SCC 470 : 1983 SCC (Cri) 681] , this Court extrapolated the
principles from Bachan Singh [Bachan Singh v. State of Punjab,
(1980) 2 SCC 684 : 1980 SCC (Cri) 580] , and merit repetition :
(Machhi Singh case [Machhi Singh v. State of Punjab, (1983) 3
SCC 470 : 1983 SCC (Cri) 681] , SCC p. 489, paras 38-40)“38. In this background the guidelines indicated in Bachan
Singh case [Bachan Singh v. State of Punjab, (1980) 2 SCC 684
: 1980 SCC (Cri) 580] will have to be culled out and applied to
the facts of each individual case where the question of imposing
of death sentence arises. The following propositions emerge
from Bachan Singh case [Bachan Singh v. State of Punjab,
(1980) 2 SCC 684 : 1980 SCC (Cri) 580] :
(i) The extreme penalty of death need not be inflicted except
in gravest cases of extreme culpability.
(ii) Before opting for the death penalty the circumstances of
the “offender” also require to be taken into consideration
along with the circumstances of the “crime”.
(iii) Life imprisonment is the rule and death sentence is an
exception. In other words death sentence must be imposed
only when life imprisonment appears to be an altogether
23inadequate punishment having regard to the relevant
circumstances of the crime, and provided, and only 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.
(iv) 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 the mitigating circumstances before the option is
exercised.
39. In order to apply these guidelines inter alia the following
questions may be asked and answered:
(a) Is there something uncommon about the crime which
renders sentence of imprisonment for life inadequate and
calls for a death sentence?
(b) Are the circumstances of the crime such that there is no
alternative but to impose death sentence even after according
maximum weightage to the mitigating circumstances which
speak in favour of the offender?
40. If upon taking an overall global view of all the
circumstances in the light of the aforesaid proposition and
taking into account the answers to the questions posed
hereinabove, the circumstances of the case are such that death
sentence is warranted, the court would proceed to do so.”
48. In the said case, the Hon’ble Supreme Court also noted to the
following taking note of Bachan Singh (supra);
“237. Mitigating factors in general, rather than excuse or
validate the crime committed, seek to explain the surrounding
circumstances of the criminal to enable the Judge to decide
24between the death penalty or life imprisonment. An illustrative
list of indicators first recognised in Bachan Singh [Bachan
Singh v. State of Punjab, (1980) 2 SCC 684, para 206 : 1980
SCC (Cri) 580] itself : (SCC p. 750, para 206)
“206. … Mitigating circumstances.–In the exercise of its
discretion in the above cases, the court shall take into account
the following circumstances:
(1) That the offence was committed under the influence of
extreme mental or emotional disturbance.
(2) The age of the accused. If the accused is young or old, he
shall not be sentenced to death.
(3) The probability that the accused would not commit
criminal acts of violence as would constitute a continuing
threat to society.
(4) The probability that the accused can be reformed and
rehabilitated.
The State shall by evidence prove that the accused does not
satisfy Conditions (3) and (4) above.
(5) That in the facts and circumstances of the case the
accused believed that he was morally justified in committing
the offence.
(6) That the accused acted under the duress or domination of
another person.
(7) That the condition of the accused showed that he was
mentally defective and that the said defect impaired his
capacity to appreciate the criminality of his conduct.”
These are hardly exhaustive; subsequently, this Court in
several judgments has recognised, and considered
commutation to life imprisonment, on grounds such as young
age [Mahesh Dhanaji Shinde v. State of Maharashtra, (2014) 4
SCC 292 : (2014) 2 SCC (Cri) 321; Gurvail Singh v. State of
Punjab, (2013) 2 SCC 713 : (2013) 2 SCC (Cri) 864] , socio-
25
economic conditions [Mulla v. State of U.P., (2010) 3 SCC 508 :
(2010) 2 SCC (Cri) 1150; Kamleshwar Paswan v. State (UT of
Chandigarh), (2011) 11 SCC 564 : (2011) 3 SCC (Cri) 409; Sunil
Damodar Gaikwad v. State of Maharashtra, (2014) 1 SCC 129 :
(2013) 4 SCC (Cri) 83] , mental illness [Shatrughan Chauhan v.
Union of India, (2014) 3 SCC 1 : (2014) 2 SCC (Cri) 1] , criminal
antecedents [Dilip Premnarayan Tiwari v. State of Maharashtra,
(2010) 1 SCC 775 : (2010) 1 SCC (Cri) 925] , as relevant
indicators on the questions of sentence. Many of these factors
reflect demonstrable ability or merely the possibility even, of the
accused to reform [i.e. (3) and (4) of the Bachan Singh [Bachan
Singh v. State of Punjab, (1980) 2 SCC 684 : 1980 SCC (Cri)
580] list], which make them important indicators when it comes
to sentencing.”
49. Similarly in the case of Bachan Singh (supra), the Hon’ble
Supreme Court laid down that besides the consideration of mitigating
circumstances, aggravating circumstances should also be weighed to
arrive at a conclusion that death penalty should or should not be
imposed. The Hon’ble Court observed that,
“202. Drawing upon the penal statutes of the States in U.S.A.
framed after Furman v. Georgia [33 L Ed 2d 346 : 408 US 238
(1972)] , in general, and clauses 2 (a), (b), (c) and (d) of the
Penal Code, 1860 (Amendment) Bill passed in 1978 by the
Rajya Sabha, in particular, Dr Chitale has suggested these
“aggravating circumstances”:
“Aggravating circumstances: A court may, however, in the
following cases impose the penalty of death in its discretion:
(a) if the murder has been committed after previous planning
and involves extreme brutality; or
26
(b) if the murder involves exceptional depravity; or
(c) if the murder is of a member of any of the armed forces of the
Union or of a member of any police force or of any public
servant and was committed–
(i) while such member or public servant was on duty; or
(ii) in consequence of anything done or attempted to be done
by such member or public servant in the lawful discharge of
his duty as such member or public servant whether at the
time of murder he was such member or public servant, as the
case may be, or had ceased to be such member or public
servant; or
(d) if the murder is of a person who had acted in the lawful
discharge of his duty under Section 43 of the Code of Criminal
Procedure, 1973, or who had rendered assistance to a
Magistrate or a police officer demanding his aid or requiring his
assistance under Section 37 and Section 129 of the said Code.”
50. In the case at hand, as noted above, the appellant is aged about
33 years. Nothing of unfavourable behavior has been reported as
against the appellant, which does not rule out the possibility of
reform. The evidence on record does not suggest that murder of the
victim was preplanned or committed with premeditation and extreme
brutality. Rather the evidence on record shows that the appellant and
the victim had visited and stayed together in the hotel on previous
occasions as well. Such circumstances belie the existence of any
previous enmity between them. We are not in position to return a
finding that the appellant would be a menace to the society, if not
awarded with death penalty. It has been laid down by the Hon’ble
27
Supreme Court time and again that life imprisonment is a rule and
death penalty is exception in awarding sentence in cases where death
and life imprisonment are the prescribed punishments.
51. In the light of discussions hereinbefore, we are of the opinion
that in the facts and circumstances of the present case, imprisonment
for life would be sufficient punishment instead of death penalty. We
are not minded to confirm the death sentence awarded by the learned
Trial Court. We accordingly commute the death sentence, imposed
upon the appellant, into one of life imprisonment.
52. Consequently, Death Reference No. 1 of 2023 along with the
appeal being C.R.A. (DB) 86 of 2023, are disposed of accordingly.
53. A copy of this judgment along with the Trial Court records be
remitted to the appropriate Trial Court forthwith. In view of the
commutation of the death penalty of Samar Patra, any warrant issued
by the appropriate Court with regard thereto in respect of Samar Patra
stands modified in terms of this judgment and order. Department will
inform the Correctional Home, where the appellant is lodged, as to this
judgment and order. The Correctional Home will record the fact of
commutation of death penalty to the sentence awarded by this
judgment and order in respect of Samar Patra, in their records.
54. Period of detention already undergone by the appellant shall
be set off against the substantive punishment in terms of the
28
provisions contained in Section 428 of the Code of Criminal
Procedure.
55. Urgent Photostat certified copy of this judgment, if applied for,
be supplied to the parties on priority basis upon compliance of all
formalities.
[MD. SHABBAR RASHIDI, J.]
56. I agree.
[DEBANGSU BASAK, J.]