Calcutta High Court (Appellete Side)
The State Of West Bengal vs Radha Kanta Bera on 22 July, 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. 02 OF 2023
THE STATE OF WEST BENGAL ... APPELLANT
Vs.
RADHA KANTA BERA ... RESPONDENT
With
CRIMINAL APPEAL (DB) NO. 169 OF 2023
RADHA KANTA BERA … APPELLANT
Vs.
STATE OF WEST BENGAL … RESPONDENT
For the Appellant : Mr. Sourav Chatterjee, Sr. Adv.
Mr. Soumya Nag, Adv.
For the State : Mr. Debasish Roy, Ld. P.P.
Mr. Rudradipta Nandy, Adv.
Ms. Amita Gaur, Adv.
Hearing concluded on : 23.06.2025
Judgment on : 22.07.2025
sk sohel Digitally signed by sk
sohel uddin
uddin Date: 2025.07.22 13:09:51
+05'30'
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MD. SHABBAR RASHIDI, J.:-
1. Death reference and the appeal are directed against the
impugned judgment of conviction dated May 2, 2023 and consequent
order of sentence dated May 3, 2023 passed by Learned Additional
Sessions Judge, 1st Court, Jhargram, in connection with Sessions Trial
No. 11 (6) of 2018 arising out of Sessions Case No. 01(09) of 2017.
2. By the impugned judgment of conviction the appellant was
convicted for the offence punishable under Section 302 of the Indian
Penal Code. Consequently the appellant was sentenced to death penalty
for such offence. However, on the basis of evidence on record, the other
accused persons namely Mihir Bera, Kabita Bera and Nandalal Bera were
found not guilty of the charges and were acquitted by the impugned
judgment.
3. Learned Advocate for the appellant submits that the material
embellishments were made by the prosecution in course of evidence
adduced on its behalf. It has been submitted that there are variations in
the statements of the prosecution witnesses vis-à-vis the written
complaint. It was also submitted on behalf of the learned Advocate for
the appellant that the prosecution witnesses, particularly, P.W. 1 and
P.W. 3, who claimed to be eye-witnesses to the incident, were highly
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doubtful. There are material contradictions in the statement of such
witnesses.
4. Learned Advocate for the appellant also submitted that no
independent witnesses have been examined on behalf of the prosecution
to support its case. P.Ws. 1 and 3 are relatives of the victim and are
highly interested witnesses. Their testimonies should not be trusted to
secure conviction of the appellant. It was also submitted that non-
appearance or non-examination of any of the person from the locality
where it had been claimed that the incident occurred in an open space,
makes the case of the prosecution highly doubtful.
5. Referring to the medical evidence learned Advocate for the
appellant submitted that the date and time of the incident has not been
established by the prosecution.
6. It was further submitted on behalf of the learned Advocate for
the appellant that the alleged offending weapon was stated to be
recovered on the basis of a statement of the appellant leading to recovery.
Such fact has not been established at the trial. It was submitted that one
of the witnesses to such seizure were not examined by the prosecution
and the other witness to such seizure has not supported the case of the
prosecution and was also not declared hostile. As such, according to
learned Advocate for the appellant, recovery of the alleged offending
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weapon at the instance of the appellant in terms of the provision
contained under Section 27 of the Indian Evidence Act cannot be said to
be proved at the trial. To such proposition, learned advocate for the
appellant relied upon (2024) 3 Supreme Court Cases 481 (Raja
Naykar Vs. State of Chhattisgarh).
7. Learned Advocate for the appellant also submitted that the
recovery of the dead body of the victim at the leading statement of the
appellant proved by P.W. 18 was belied by the testimony of P.W. 2. It was
submitted that P.W. 2 could see the beheaded body of the victim lying
outside a temple wherefrom it was removed by the police.
8. Learned Advocate for the appellant also submitted that
although, P.Ws. 11 and 12 did not support the case of the prosecution,
nevertheless, they were not declared a hostile witness by the prosecution.
The defense was entitled to rely upon the evidence of such witnesses. In
support of such contention, learned advocate for the appellant relied
upon (2005) 5 SCC 272 (Raja Ram Vs. State of Rajasthan).
9. Learned Advocate for the appellant also submitted that the
learned Trial Court did not assign any reason in the impugned judgment
as to how he was left with no option but to award a capital punishment.
It was submitted that the learned Trial Court did not come to a definite
conclusion that the case fell within the category of ‘rarest of rare cases’
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and proceeded to award the punishment of death. There was no finding
in the impugned judgment that the appellant was beyond reformation. In
support of such contention, learned Advocate for the appellant relied
upon (2023) 2 SCC 353 (Manoj and Ors. Vs. State of Madhya
Pradesh).
10. On the other hand, learned Advocate for the State referring to
the evidence adduced on behalf of the prosecution submitted that the
prosecution was sufficiently able to bring home the charge levelled
against the appellant with the help of convincing evidence. It was also
submitted by the learned Advocate for the appellant that in the case at
hand, the victim was dragged out of her residence and taken to some
distance near a temple where she was beheaded by the appellant. There
are eyewitnesses to the incident. Besides that medical evidence also
supports the case of the prosecution so far as the nature and manner of
injury is concerned.
11. One Arati Bera lodged a complaint with the Officer-in-Charge,
Sankrail Police Station to the effect that on February 9, 2017 at about
6:30 in the evening, the appellant being her grandson in relation dragged
her mother Tarubala Bera forcibly from her house due to anger. He
further stated that the appellant took the victim near a Shiv temple of
her village and chopped off her head with a sharp weapon. The de-facto
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complainant further stated in her written complaint that after such
incident the appellant returned to his house dancing down the road
carrying the head of the victim in one hand and sharp cutting weapon in
the other. Thereafter, the de-facto complainant saw the appellant going
away with the head and the sharp cutting weapon.
12. On the basis of such written complaint, Sankrail Police Station
Case No. 12/2017 dated February 9, 2017 under Section 302/201 of the
IPC was started against the appellant.
13. Police took up investigation and on completion of investigation
submitted charge-sheet against the appellant and others under the
aforesaid sections of the Indian Penal Code. Accordingly, on the basis of
materials in the case diary, charges under Section 302/120B of the IPC
were framed against the appellant and others on June 29, 2018. The
accused persons pleaded not guilty to the charges and claimed to be
tried.
14. In order to bring home the charges, prosecution examined 18
witnesses in all. In addition, prosecution also relied upon several
documentary as well as material evidences.
15. The de-facto complaint herself deposed as P.W. 1. She identified
the appellant and other accused persons in Court. She stated that two
years ago in the month of Magh on a Thursday at around 5:00 p.m. her
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mother had just returned to her house. At that time, when her mother
was entering her house, the accused persons, namely, appellant
Radhakanta Bera, his father Mihir Bera and his mother Kabita Bera
arrived there and forcibly took the mother of P.W. 1 to a Kali temple
adjacent to Shiv temple at her village. She further stated that at the Kali
temple her mother was asked to bow down before the idol and as soon as
she bowed down, the appellant struck her neck with a sharp cutting
weapon. The head of the mother of P.W. 1 was severed off from her body.
P.W. 1 also stated that such act was done by the appellant and his
parents as they believed the mother of P.W. 1 to be a witch and they were
offering a sacrifice (boli). She further stated that thereafter the appellant
took the head of her mother with him to his house. He was followed by
his parents. P.W. 1 who stated that she had seen the incident with her
own eyes. Subsequently, she lodged a complaint with Sankrail Police
Station. P.W. 1 also stated that police arrived at the spot and inspected
the body in her presence and prepared a document to which she put her
left thumb impression. She further stated that police also inspected the
severed head of her mother and prepared a separate document to which
also she put her left thumb impression. Police seized blood stained earth
from the place of occurrence in her presence under a seizure list. She put
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her thumb impression on such seizure list. She also stated that she
recorded the statement in Court prior to her deposition.
16. In her cross-examination, P.W. 1 stated that written complaint
was scribed by police officer at the police station. She also stated that
she had raised alarm when her mother was being dragged by the
appellant but nobody came to rescue her. She also stated in her cross-
examination that she tried to save her mother from being offered as boli
but could not succeed. In doing so, she did not receive any stains of her
mother’s blood.
17. Father of the de-facto complainant deposed as P.W. 2. He stated
that his wife was murdered by the appellant (son of Mihir Bera). He
identified the appellant in Court. He further stated that his wife was
declared as a witch by the appellant. She was taken to Kali temple of his
village and then asked to bow down before an idol. When his wife bowed
down, the appellant struck on the back of her neck by a sword due to
which she died instantly. Immediately thereafter, P.W. 2 stated that on
hue and cry he rushed to the temple and found severed head of his wife
was taken away by the appellant. He saw the beheaded body of his wife
lying on the ground outside the temple. There was blood all around the
body of the victim. Thereafter, police arrived there and took up the dead
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body. P.W. 2 was cross-examined at length by the defense but nothing
favourable could be elucidated.
18. The husband of de-facto complainant was examined as P.W. 3.
He identified all the accused persons including the appellant in Court.
P.W. 3 stated that about two years two months ago on a date when he
was in his house, he heard a commotion from Kali temple near his
house. He ran out and saw that the appellant had tied the hands of the
victim in the said Kali temple. Thereafter, he saw the appellant asking
the victim to bow down her head. P.W. 3 also stated that when the victim
lowered down her head, the appellant told her it should not be done that
way and asked her to fold hands properly before the idol which the victim
did. Thereafter, appellant hit the victim with a sharp cutting weapon
(chora) on the back of her neck due to which the neck was severed off
from her body. He also saw the appellant taking away the head of the
victim out of the Kali temple. P.W. 3 requested the appellant not to
assault the victim, but the appellant told him that he would cut the
victim as she was a witch. Thereafter, his wife lodged a written complaint
whereupon the police arrived and conducted inquest over the dead body
and the beheaded head of the victim. Two separate inquest reports were
prepared. P.W. 3 signed on such inquest reports. P.W. 3 identified his
signature on the inquest reports. He also proved his signature on the
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seizure list. P.W. 3 also stated that police seized blood stained earth from
the temple and a separate seizure list to which he signed. He proved
such signature at the trial. He claimed to be interrogated by police in
connection with this case. In his cross-examination, P.W. 3 stated that
when he arrived at the temple, there were about 25 people assembled
and all of them were trying to resist the appellant from assaulting the
victim.
19. A Sub-Inspector of Police deposed as P.W. 4. He received
wearing apparels of the victim from a police constable which was brought
from the hospital in connection with an unnatural death case. He
handed over the said articles to the investigating officer which was seized
under a seizure list. P.W. 4 put his signature on the seizure list dated
February 11, 2017. P.W. 4 also identified such wearing apparels
produced in Court which were marked as Mat Exhibit.
20. A police constable deposed as P.W. 5. He was a witness to the
seizure list through which the wearing apparels of the victim were
handed over to the investigating officer by P.W. 4. He proved his
signature on such seizure list. He also identified the seized articles in
Court.
21. P.W. 6 is a seizure list witness. He stated that on the relevant
date he had gone to his neighbouring village by his motorcycle. On the
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way he was stopped by police and was asked to sign on a blank piece of
paper on which he signed. He proved his signature on the seizure list
dated February 12, 2017.
22. P.Ws. 7 and 8 did not add any value to the case of the
prosecution.
23. P.W. 9 is a hearsay witness. He had heard that the victim was
murdered by the appellant.
24. P.W. 10 is also a hearsay witness. He heard about the incident
from his wife but he could not say how the victim died.
25. P.W. 11 also heard that the victim died two years ago. However,
he did not see anything as he was not present. He identified three
accused persons including the appellant as his co-villagers. P.W. 11 also
stated that he was earlier called upon by Sankrail Police Station and was
forced to become a witness in the case. He initially refused to become a
witness. He recorded statement before learned Magistrate which was
tutored by police officer. P.W. 11 proved his signature on the statements
recorded under Section 164 of the Code of Criminal Procedure.
26. P.W. 12 is another co-villager. He stated that the victim died two
years ago. He identified the three accused persons including the
appellant as his co-villagers. He also stated that on the date of incident
he had gone to work. He had returned in the evening and heard that
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victim was murdered. He, however, did not hear who murdered her. P.W.
12 also stated that earlier he was called by Sankrail Police Station and
was forced to become a witness in the case by the police officer which he
initially refused but he was compelled to be a witness. Accordingly, he
recorded statement before learned Magistrate. He narrated the incident
before learned Magistrate as tutored by the police. He proved his
signature on such statement. In his cross-examination, P.W. 12 stated
that the appellant used to behave like a lunatic and used to be kept tied
in his house frequently.
27. The autopsy surgeon deposed as P.W. 13. He stated that on
February 11, 2017 he conducted post mortem examination over the
severed head and the remaining part of the dead body of one Tarubala
Bera, a female aged about 65 years. He further stated that at first, he
conducted post mortem over the severed head of the victim. According to
him, the death of the subject appeared to be due to decapitation on head
as noted in the said report. The injury was ante mortem in nature. He
proved the post mortem report prepared in his pen and signature. P.W.
13 further stated that he also conducted post mortem over the body part
of the victim. The death of the subject appeared to be due to decapitation
of head which was ante mortem in nature. He proved the post mortem
report. P.W. 13 also stated that after conducting post mortem over the
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severed head and body part, he came to the conclusion that the head
and the body part was of the same individual. On proof, the post mortem
reports were marked as Exhibits 19 and 20.
28. A police constable was examined as P.W. 14. He stated that on
February 9, 2017, he accompanied S.I. Prasanta Kumar Shit on a mobile
duty. During such duty, a motorcycle belonging to Mihir Bera was seized.
P.W. 14 proved his signature on a seizure list dated April 24, 2017
(Exhibit 9).
29. Another police constable deposed as P.W. 15. He is also a
seizure list witness. He stated that on April 24, 2017 he accompanied S.I.
Prasanta Kumar Shit and P.W. 14 on a mobile duty. They received a
news that a bike was lying at Dahirchak. After giving information to the
Officer-in-Charge, they were directed to proceed to the place.
Accordingly, they went to the spot and they found one black Honda bike
lying on the road. A copy of RC book was recovered from the dicky of the
said motorcycle which was standing in the name of Mihir Bera.
Accordingly, the motorcycle was seized. P.W. 15 proved his signature on
the seizure list dated April 24, 2017.
30. The recording officer was examined as P.W. 16. He stated that
on February 9, 2017 he was on duty at Sankrail Police Station and in
such capacity, he received a written complaint from one Arati Bera. P.W.
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16 proved his endorsement of receipt on the written complaint. Upon
receipt of the written complaint he started Sankrail Police Station Case
No. 12/2017 dated February 9, 2017 under Section 302/201 of the IPC.
He also filled up the formal FIR. He proved the formal FIR filled up in his
pen (Exhibit P/11). He also stated that after the case was registered the
Inspector-in-Charge of Sankrail Police Station entrusted the case to S.I.
Prasanta Kumar Shit for investigation. In his cross-examination, P.W. 16
admitted that after filling up the formal FIR he obtained left thumb
impression of the complainant Arati Bera upon the formal FIR.
31. Another police constable deposed as P.W. 17. He stated that on
February 9, 2017, as per the instruction of S.I. Prasanta Kumar Shit of
Sankrail Police Station, he carried the beheaded dead body and chopped
head of one Tarubala Bera to Jhargram Hospital under dead body
challans. P.W. 17 proved his signature on such challans (Exhibits P/12
and P/13). He carried the dead body and the severed head to hospital
and handed over the same to the authorities of the hospital. Later on he
was handed over with the wearing apparels of the deceased victim which
was seized by the investigating officer from the possession of P.W. 17.
P.W. 17 proved his signature on such seizure list dated February 11,
2017 [Exhibit P/5(2)].
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32. The investigating officer of the case was examined as P.W. 18.
He stated that on February 9, 2017 he was endorsed by the Officer-in-
Charge, Sankrail Police Station with the investigation of Sankrail Police
Station Case No. 12/2017 dated February 9, 2017 under Section
302/201 of the IPC. In the course of investigation, he collected the blood
stained earth under a seizure list. He proved the seizure list. He also
searched for surrounding places but could not find the beheaded
chopped body. He took photographs of the surrounding places and
proved the photographs. Thereafter, Arati Bera lodged a complaint which
was sent by P.W. 18 to the police station. P.W. 18 also visited the place of
occurrence and prepared rough sketch map with index thereof (Exhibits
P/15 and P/16). He arrested the appellant and recorded his statement
which he proved (Exhibit P/17). On the basis of such statement the
beheaded body was found. P.W. 18 also stated in the course of
investigation he conducted inquest over the dead body, seized the
wearing apparels of the accused persons. He also examined available
witnesses and recorded their statements under Section 161 of the Code
of Criminal Procedure. He arranged for post mortem examination of the
dead body and collected the post mortem report. He also seized the
wearing apparels of the victim under a seizure list which he proved
[Exhibit P/5(3)]. He also took the appellant on police remand and during
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the remand period he recovered the offending weapon as per the leading
statement of the appellant. He proved such statement of the appellant
(Exhibit P/18) and the seizure list under which such weapon was seized.
He also sent alamats for chemical examination to the Forensic Science
Laboratory. On completion of investigation, he submitted charge-sheet
under Sections 301/201/34/120B of the IPC.
33. On conclusion of the evidence on behalf of the prosecution, the
appellant and the other accused persons were examined under Section
313 of the Code of Criminal Procedure where the appellant pleaded not
guilty. He however declined to adduce any defense witness.
34. It is the case of prosecution that the victim lady was murdered
by the appellant by a sharp cutting weapon. He severed the head of the
victim lady resulting in her death and thereafter fled away. The matter
was immediately reported to the police. Police arrived at the spot and
found the severed head as well as beheaded body of the victim from the
place of occurrence which was near a temple in the village. Police
conducted inquest over the dead body as well as the detached head of
the victim. Later the two parts of the dead body was sent for post mortem
examination. PW13 conducted post mortem over the dead body as well
as the severed head of the victim. In his examination, PW13 stated that
the death of the subject appeared to be due to decapitation on head as
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noted in the said report. He also noted several injuries over the dead
body. PW13 prepared reports after conducting post mortem over the dead
body and the detached head of victim. He also opined that the two parts
belonged to one and the same person. He proved the post mortem reports
which were admitted in evidence and marked as exhibits 19 and 20.
35. Therefore, in consideration of the case of the prosecution
together with the evidence of PW1, PW2 and PW3 and also taking into
account the testimony of PW13 coupled with that of exhibit 19 and
exhibit 20, it is explicit that the victim suffered an unnatural death and
that such death was caused by beheading with some sharp cutting
weapon.
36. So far as the person responsible for causing the death of victim
is concerned, the written complaint discloses that the victim was dragged
by the appellant from her house, while she was entering into her house.
She was taken to a nearby Shib temple, within the vicinity where she
was beheaded by the appellant with a sharp cutting weapon.
37. The de facto complainant deposed as PW1. She claimed to be an
eyewitness to the incident. She testified that when her mother i.e. the
victim had just returned from the village market and was entering into
the house, the appellant accompanied by the other accused persons
forcibly took her to a Kali temple situated beside a Shib temple at some
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distance from her house. The victim was asked to bow down before the
idol and when she bent down, the appellant struck her with a sharp
cutting weapon resulting in severing off the head of the victim from rest
of her body. The victim died of such injury. She also stated that she
witnessed the entire incident with her own eyes. The de facto
complainant happened to be the daughter of the victim.
38. The statement of PW1 was corroborated by PW2 i.e. the
husband of the victim. Although, in his testimony he stated that hearing
hue and cry he rushed to the temple to find the severed head of his wife
being taken by the appellant. He found the beheaded body of his wife
lying near the temple and there were blood all around.
39. The husband of the de facto complainant i.e. PW1 also
corroborated the testimony of PW1. He also claimed to be an eyewitness
to the occurrence. According to his testimony, he heard a commotion
near Kali temple. He came out of his house and found that the appellant
was tying the hands of his mother-in-law in the temple. Thereafter, the
appellant asked the victim to bow down. Thereafter, PW3 saw the
appellant striking on the back side of the neck of the victim with a sharp
cutting weapon. As a consequence, the head of the victim was severed off
from her body resulting in her death.
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40. From the evidence of the aforesaid witnesses, it is quite
convincingly established that the victim was forcibly dragged out of her
house and taken to Kali temple. She was made to bow down and the
appellant struck on the back of her neck by a sharp cutting weapon
resulting in unnatural death of the victim. There may be certain minor
contradictions in the testimony of the aforesaid witnesses but such
contradictions do not tell upon the trustworthiness of the prosecution
case. The defense has not been able to dislodge the evidence of aforesaid
witnesses in so far as it refers to forcibly taking the victim to the temple
and striking her with a sharp cutting weapon that severed her head
resulting in her death.
41. The medical evidence i.e. the autopsy surgeon, PW13, has
narrated the nature of injuries found on the person of the victim which
conforms to the narration of incident testified by PW1, PW2 and PW3.
The nature of injuries is quite consistent with the nature of incident
narrated by such witnesses. He opined that the death was caused due to
decapitation of head. He also opined that such injury might be caused by
a heavy sharp cutting weapon. The nature of weapon used in the
incident, as narrated by PW1, PW2 and PW3 was sharp cutting weapon
(Chhora) which is corroborated by the opinion of PW13.
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42. PW11 and PW12 although, recorded statements under Section
164 of the Code of Criminal Procedure implicating the appellant but
later, at the time of deposition, they have stated that what they stated
before learned Magistrate was tutored by police as the police forced them
to become a witness to the incident. However, the circumstances of the
case suggest that the victim was murdered on the plea of her being a
witch.
43. There is ample evidence on record that the dead body and the
severed head was removed by the police in presence of witnesses and
was sent for post mortem examination. The defense has not been able to
imprint any dent in the testimony of the witnesses that the dead body of
the victim removed from the place of occurrence, shortly after the
incident, was sent for post mortem examination over which, PW13
conducted the post mortem and submitted his report exhibit 19 and
exhibit 20.
44. Moreover, it is the case of the prosecution that the appellant,
after committing the crime left the place of occurrence with the detached
head and the offending weapon. He fled the locality. PW14 and PW15
have testified that they were informed of an abandoned motorcycle in the
vicinity of the place of occurrence. The said motorbike was seized and
was found to be registered in the name of the father of the present
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appellant, who was initially an accused in the case. No explanation,
whatsoever, has been advanced on behalf of defense as to under what
circumstances, the motorcycle belonging to the father of the appellant
was found abandoned in the locality of the place of occurrence.
45. Therefore, on the basis of the evidence discussed hereinbefore,
especially the ocular testimony of PW1, PW2 and PW3 coupled with that
of PW13, there remains no iota of doubt that the appellant committed
murder of the victim with a sharp cutting weapon. Although, a sharp
cutting weapon was recovered by the investigating officer which is said to
be the offending weapon. It has been stated that such recovery was made
as per the leading statement of the appellant. However, since no
statement leading to recovery, was proved at the trial to bring such
recovery under the provisions of Section 27 of Indian Evidence Act, 1872.
46. In Raja Naykar (supra), the Hon’ble Supreme Court laid down
that,
“23. The aforesaid story is narrated in the memorandum of
the appellant under Section 27 of the Evidence Act. However,
as held by the Privy Council in the locus classicus case of
Pulukuri Kotayya v. King Emperor [Pulukuri Kotayya v. King
Emperor, 1946 SCC OnLine PC 47 : (1946-47) 74 IA 65 : AIR
1947 PC 67] , only such statement which leads to recovery of
incriminating material from a place solely and exclusively
within the knowledge of the maker thereof would be
admissible in evidence.
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24. Undisputedly, the dead body was found much prior to
the recording of the memorandum of the appellant under
Section 27 of the Evidence Act. Therefore, only that part of
the statement which leads to recovery of the dagger and the
rickshaw would be relevant.”
47. Nonetheless, the ocular testimony of PW1, PW2 and PW3
together with that of PW13 sufficiently establishes that it was the
appellant who dealt the fatal blow upon the victim causing her death. In
such view of the facts, we find no reason to interfere with the impugned
judgment in so far as it relates to conviction of the appellant for the
offence punishable under Section 302 of the Indian Penal Code.
48. In Raja Ram (supra), it was observed by the Supreme Court
that,
“9. But the testimony of PW 8 Dr. Sukhdev Singh, who is
another neighbour, cannot easily be surmounted by the
prosecution. He has testified in very clear terms that he saw
PW 5 making the deceased believe that unless she puts the
blame on the appellant and his parents she would have to
face the consequences like prosecution proceedings. It did not
occur to the Public Prosecutor in the trial court to seek
permission of the court to heard (sic declare) PW 8 as a
hostile witness for reasons only known to him. Now, as it is,
the evidence of PW 8 is binding on the prosecution.
Absolutely no reason, much less any good reason, has been
stated by the Division Bench of the High Court as to how PW
8’s testimony can be sidelined.”
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49. In the case at hand, applying the principles laid down by the
Hon’ble Supreme Court in Raja Ram (supra) although entitles the
defense to rely upon the testimony of PW11 and PW12 who were not
declared hostile by the prosecution but PW1 and PW3 have claimed to be
eyewitnesses and the defense has not been able to dislodge the testimony
of such witnesses.
50. As regards the imposition of death sentence upon the appellant,
it is well settled principle of law that death penalty may be imposed if the
court awarding the sentence comes to definite finding that the option of
imposing of any punishment other than death penalty is unquestionably
foreclosed and would be insufficient in the facts and circumstances of
the case. The court imposing the death sentence must also return a
finding that the convict is beyond reformation and would be a menace to
the society if allowed to return after a specific period of time.
51. In Manoj (supra), the Hon’ble Supreme Court noted that,
“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
between 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)
24
“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-
economic conditions [Mulla v. State of U.P., (2010) 3 SCC 508
25
: (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.”
52. The Hon’ble Supreme Court further held in the case of Manoj
(supra) that,
“250. Next, the State, must in a time-bound manner, collect
additional information pertaining to the accused. An
illustrative, but not exhaustive list is as follows:
(a) Age
(b) Early family background (siblings, protection of
parents, any history of violence or neglect)
(c) Present family background (surviving family members,
whether married, has children, etc.)
(d) Type and level of education
(e) Socio-economic background (including conditions of
poverty or deprivation, if any)
(f) Criminal antecedents (details of offence and whether
convicted, sentence served, if any)
26
(g) Income and the kind of employment (whether none, or
temporary or permanent, etc.);
(h) Other factors such as history of unstable social
behaviour, or mental or psychological ailment(s),
alienation of the individual (with reasons, if any), etc.
This information should mandatorily be available to the trial
court, at the sentencing stage. The accused too, should be
given the same opportunity to produce evidence in rebuttal,
towards establishing all mitigating circumstances.
251. Lastly, information regarding the accused’s jail conduct
and behaviour, work done (if any), activities the accused has
involved themselves in, and other related details should be
called for in the form of a report from the relevant jail
authorities (i.e. Probation and Welfare Officer, Superintendent
of Jail, etc.). If the appeal is heard after a long hiatus from
the trial court’s conviction, or High Court’s confirmation, as
the case may be — a fresh report (rather than the one used
by the previous court) from the jail authorities is
recommended, for a more exact and complete understanding
of the contemporaneous progress made by the accused, in
the time elapsed. The jail authorities must also include a
fresh psychiatric and psychological report which will further
evidence the reformative progress, and reveal post-conviction
mental illness, if any.”
53. In the result, the Hon’ble Supreme Court observed to the
following, that’s to say:
“262. The reports received from the Superintendent of Jail
reflect that each of the three accused, have a record of overall
good conduct in prison and display inclination to reform. It is
27evident that they have already, while in prison, taken steps
towards bettering their lives and of those around them,
which coupled with their young age [Gurvail Singh v. State of
Punjab, (2013) 2 SCC 713, paras 13, 19 : (2013) 2 SCC (Cri)
864; Amit v. State of U.P., (2012) 4 SCC 107, para 22 : (2012)
2 SCC (Cri) 590; Shyam Singh v. State of M.P., (2017) 11 SCC
265, para 8 : (2017) 4 SCC (Cri) 302 and Ramnaresh v. State
of Chhattisgarh, (2012) 4 SCC 257, para 88 : (2012) 2 SCC
(Cri) 382] unequivocally demonstrates that there is in fact, a
probability of reform. On consideration of all the
circumstances overall, we find that the option of life
imprisonment is certainly not foreclosed.”
54. The learned trial court although, took into consideration the fact
that the appellant was repentant and had a good conduct in the
correctional home. He has family behind to be looked after and that he
was the only bread earner of his family. Nevertheless, in order to strike
balance between the crime and punishment and that, punishment will
send a signal to the prospective offenders, learned trial court proceeded
to hold that the case fell under the ‘rarest of rare category’ and awarded
death sentence to the appellant.
55. In course of hearing of the present appeal and the death
reference, we also called for psychological evaluation report, medical
report as well as socio-economic report in respect of the appellant. Such
report suggests that the appellant is 28 years of age and is unmarried.
28
He is the only son of his parents and has no sister. He studied up to
class V and thereafter has worked as an agricultural laborer and helper
of a mason. The report also discloses that the appellant once fell from the
roof of a bus and since then he developed mental illness. He often went
violent due to such illness. He used to be kept tied and was under
medical treatment. According to socio-economic report, the condition of
the family is socially not very sound. Educational status of the family is
also not very well off. The family is poor and uneducated and is not in
position to understand the consequences. Report also indicated that the
appellant has no criminal antecedent and his conduct in the correctional
home was normal. He was found physically fit but mentally depressed.
The medical report of the victim showed no apparent gross
psychopathology or psychotic symptom could be detected for the present
when he was examined on June 13, 2025.
56. Thus, in consideration of such reports and in view of the
observations laid down in the case of Manoj (supra), we are not in a
position to return a definite finding that the appellant/convict is beyond
reformation. His overall conduct in the correctional home was found to
be good. His age is also of consideration. Moreover, he had suffered a fall
from the roof of bus resulting in his mental illness which often turns
violent for which the family had to keep him detained. Taking all the
29
aforesaid factors coupled with the conduct of the appellant in the
correctional home and that he had no criminal antecedent behind, we
are of the view that the option of any punishment other than death
penalty is not foreclosed. Apart from that, the facts and circumstances of
the case under which, the offence was committed, cannot be said to
bring the case in the category of ‘rarest of rare case’.
57. 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.
58. Consequently, Death Reference No. 2 of 2023 along with the
appeal being C.R.A. (DB) 169 of 2023, are disposed of accordingly.
59. 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 Radahkanta Bera, any warrant
issued by the appropriate Court with regard thereto in respect of
Radahkanta Bera 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
30
the fact of commutation of death penalty to the sentence awarded by this
judgment and order in respect of Radahkanta Bera, in their records.
60. Period of detention already undergone by the appellant shall be
set off against the substantive punishment in terms of the provisions
contained in Section 428 of the Code of Criminal Procedure.
61. 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.]
62. I agree.
[DEBANGSU BASAK, J.]
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