Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 407 OF 2008
Kunal Majumdar …Appellant
VERSUS
State of Rajasthan …Respondent
J U D G M E N T
Fakkir Mohamed Ibrahim Kalifulla, J.
1. This appeal at the instance of the sole accused is directed against
the judgment of the Division Bench of the High Court of Rajasthan at
Jodhpur dated 11.7.2007 in Criminal Murder Reference under Section
361, Cr.P.C. along with Criminal Appeal No.1/2007 as well as Criminal
Appeal No.243 of 2007 and Jail Appeal No.313 of 2007 under Section
374(2) Cr.P.C. against the judgment and conviction dated 09.3.2007
passed by learned Additional Sessions Judge (Fast Track) No.1, Jodhpur
in Sessions Case No.2 of 2006. The appellant was proceeded against
for charges under Sections 376 and 302, IPC.
2. According to the prosecution, on 18.1.2006, a complaint (Exhibit P-6)
was preferred by one Laltu Manjhi before the SHO, police station
Shastri Nagar, Jodhpur wherein it was alleged that his daughter Bharti
(the deceased) was employed as a housemaid in the residence of the
appellant and that 25 days prior to the date of complaint, one Sudip
De, through whom his daughter came to be employed with the appellant,
informed him over phone that his daughter wanted to speak to him, that
when he talked to his daughter, he could sense the plight of his
daughter in the residence of the appellant, that though his daughter
wanted to explain her ordeal at the instance of the appellant, she was
prevented from talking to him in detail and that on the morning of
16.1.2006 at about 5 O’ clock, he received an information through
Sudip De that the appellant informed him over phone that his daughter
fell unconscious due to Vertigo and was admitted to hospital. On such
information, when the father of the deceased reached Jodhpur, the
appellant informed him through Sudip De that his daughter was dead and
that he could only see the body of his daughter in the Mortuary of the
M.G.Hospital on 18.01.2006 where he noted the injuries all over the
body of his daughter. According to him, he received information
through the neighbours of the appellant that the appellant was
constantly torturing the deceased during the preceding two months
during which period she was employed at the house of the appellant
apart from his immoral behaviour towards his daughter. It was his
further allegation that his daughter was killed by the appellant by
strangulation.
3. Based on the above report, the case was registered as Crime No.31 of
2006 and after investigation, the final report came to be filed
pursuant to which charges were leveled against the appellant for
offences under Sections 302 and 376, IPC.
4. Before the trial Court, PWs-1 to 17 were examined in support of the
prosecution apart from Exhibits P-1 to P-20. On the 313 questioning,
the appellant denied the offences alleged against him. According to
him, he did not commit rape on the deceased, that the deceased was a
patient of Epilepsy and on the date of incident, she developed the fit
of Epilepsy due to which she developed breathlessness, became restless
and, thereafter, fell down due to which she sustained injuries, that
in order to give artificial respiration, the appellant and his wife
took efforts to open her teeth to pour water and subsequently took her
to the hospital in a three wheeler taxi where she was declared dead.
It was further stated by the appellant that he intimated the parents
of the deceased, that the complaint was false and he was innocent.
5. One factor which is relevant to be noted at the very outset is that as
per the post mortem report, there were as many as 27 injuries almost
on all parts of the body of the deceased and, in particular, injury
Nos.19, 20 and 21 which were in the private parts of the deceased.
The doctor who conducted the post mortem, namely, PW-9, in the post
mortem report specifically mentioned to the effect- ‘on dissection of
neck – ante mortem reddish coloured haematoma present on Lt. side neck
underneath the skin & in underlying soft tissues. On further
examination, patchy antemortem reddish dark haematoma present below
epiglottis on both sides & also in soft tissues at upper part of
trachea. Hyoid bone, thyroid & corticord cartilages found intact,
mucosa of trachea also congested in upper half. Opinion: Cause of
death is ante-mortem injuries to neck, which are sufficient to cause
death.
6. The further report of the doctor was that there was pressure above the
Larynx Trachea of the deceased. In the further report under Exhibits
P-14 and P-15, it was noted that many sections in trachea cut and
congestion of vessels were found apart from haemorrhage at many places
and acute inflammatory infiltrate was present. PW-9 further noted
that there was pressure on the layering trachea of the deceased and
the injuries were inflicted. PW-9 was the doctor who was a member of
the medical board constituted by the Superintendent of Gandhi Hospital
Jodhpur who conducted the post-mortem on the body of the deceased.
7. PW-9 in his evidence stated as under:
“Ante mortem reddish coloured haematoma present on left
side of neck underneath the skin and in underling soft tissues.
On further examination patchy ante mortem reddish dark
coloured haematoma present below epiglottis on both sides and
also in soft tissues at upper part of trachea. Hyoid bone,
Thyroid and Cricoid cartilages found intact. Mucosa of trachea
also congested in upper half.
After internal examination of the dead body it was found
that there was sub sculp haematoma in area of 2 x 2 centimetres
dark reddish in colour on left frontal region and 3 x 2
centimetres dark reddish on left occipital region near
underline. Brain, both lungs, lever, spleen and kidney were
found congested. Membrane of abdomen was yellowish and abdomen
contained about 100 m.l. yellowish fluid. On examination of
sexual organ-the hymen showed old healed tears and the vaginal
orifice admitted two fingers easily. The uterus was found
small in size and healthy and empty.”
8. The trial Court based on the medical evidence stated as under:
“Here it is worth mentioning that injury No.14 caused to
the deceased has come in the portion opposite the chest, in the
middle portion and on the right side and in the above said
injury No.14, many scratches between 2 x 2 cms to 4 x 2 cm
being there has been mentioned.
Similarly the injuries No.15, 19, 20, 21, 25, 26
respectively caused to the deceased in the portion below the
chest of the deceased, above the left nipple, towards four
sides of the left nipple, in circular shape, on the right side,
on the side portion of the chest, in one third portion, on the
neval has appeared in the form of multiple scratches.
All the above said injuries probably are not possible to
be sustained during the course of getting restlessness in the
attack of Epilepsy.
xxx xxx xxx xxx xxx
From the evidence of PW-9, Dr. P.C. Vyas, it is proved in
clear manner that the cause of death of the deceased was the
injury that came on the internal part of her neck and the above
injury was sustained as a result of an external pressure.
Hence it is clear that the death of the deceased was due to
strangulation on account of injury caused on the neck and above
said injury was sufficient to cause death. The confirmation of
the above statement of PW-9 of Dr. P.C. Vyas in the context of
the internal parts of the neck is done from the Histo Pathology
report Ex.P-14 also. In the internal Larynx and in the Trachea
protion abraided wounds have been found.
Hence from the singular evidence of PW-9, Dr.P.C. Vyas this
fact is proved beyond doubt that the death of deceased Kumari
Bharti was not due to suffocation of breath as result of fit of
epilepsy. No possibilities have appeared about sustaining above
said 27 injuries during the course of attack of Epilepsy of the
deceased.”
(emphasis added)
9. After detailed analysis of the evidence, the trial Court concluded
that the appellant was guilty of the charges falling under Sections
302, 376/511 IPC. On the question of sentence, after hearing the
appellant as well as the learned Public Prosecutor and after referring
to the various decisions of this Court regarding the principles to be
applied for imposing the capital punishment, ultimately held as under:
“This position is proved from the evidence clearly that
the accused Kumari Bharti was a minor girl of 14 years and this
position is also proved from the evidence that the father of
the girl PW-3 Laltu Manjhi had sent her from West Bengal to the
residential place located at Vyas Colony in Jodhpur, the above
said girl as maid servant, for working at the place of the
accused. Laltu Manjhi, father of the deceased has relations
with an extremely poor family and he due to his financial
circumstances by having trust on the accused that he will
maintain his daughter as his own daughter, sent her from West
Bengal to such a distance in Rajasthan. Accused Kunal Majumdar
at the time of the incident was working in Air Force Station
Jodhpur. The accused being the guardian, had done extremely
inhuman act with her and during the course of committing the
rape with deceased Bharti, inflicted total 27 injuries on
different parts of her body and thereafter by strangulating her
throat, committed her murder. The accused on the private
physical parts of the deceased i.e. on both of breast,
inflicted injuries, along with that close to the breast also of
the deceased, inflicted many physical injuries. In this way
the accused, with the minor girl who was unable to object
herself, committed this type of ill act with her.”
(emphasis added)
10. The trial Court, therefore, imposed the punishment of death sentence
apart from a fine of Rs.5,000/- for the offence found proved under
Section 302, IPC and sentence of seven years’ RI and Rs.25,000/- fine
for the offence under Sections 376/511 IPC and in default of payment
of fine, to undergo two more years of imprisonment. Since death
sentence was imposed, the case was referred for confirmation under
Section 366 (1) Cr.P.C. to the High Court and ordered to await for the
confirmation of the High Court before its execution.
11. We heard Mr. R.K. Das, learned senior counsel for the appellant and
learned counsel for the State. We have also perused the written
submissions filed on behalf of the appellant. For the reasons stated
herein, we do not find any scope to consider the submissions of the
learned senior counsel for the appellant on the merits of the case.
Having perused the judgment of the trial Court, when we examine the
judgment of the High Court, we are shocked to note that the case of
Reference of death sentence for confirmation was dealt with by
Division Bench of the High Court of Rajasthan at Jodhpur in a casual
and callous manner by merely stating that the counsel for the
appellant prayed for sympathetic consideration in commuting the death
sentence into sentence for life and there being no serious support
from the Public Prosecutor of the State and the injuries sustained
resulting into death did not suggest use of severe force in order to
conclude the same as one of brutal and inhuman, the death sentence can
be altered as one for life imprisonment under Section 302, IPC while
maintaining the sentence awarded for offences under Sections 376 read
with 511 IPC.
12. By filing this appeal against the said judgment of the High Court,
the learned Counsel for the appellant submitted that the evidence
available on record does not call for conviction and consequently the
sentences imposed cannot be sustained.
13. We also heard learned counsel for the State as to the correctness of
the judgment of the Division Bench of the High Court. The respective
counsel were not in a position to make submission as to the
correctness or otherwise of the judgment of the Division Bench
inasmuch as there was absolutely no consideration of the relative
merits and demerits of the conviction and the sentence imposed in the
Reference under Section 366 (1), Cr.P.C. in the manner in which it was
required to be considered.
14. If the submissions of learned counsel for the appellant were to be
considered in detail, that would, on the face of it, conflict with the
stand of the appellant himself before the Division Bench of the High
Court, where it has been recorded that the counsel who represented on
behalf of the appellant stated to have made only one submission to the
effect that the Court may sympathetically consider the case of the
appellant for commuting the death sentence into the sentence for life
and that no seriousness was attached to the sentences passed for
offence under Sections 376/511, IPC while praying for life
imprisonment for the principal offence. Even assuming such a
statement stated to have been made on behalf of the appellant as
recorded in the impugned judgment can be taken to be true for its face
value, we are at a loss to understand as to how the learned Public
Prosecutor could have submitted that the Court may consider the case
of the appellant sympathetically as recorded by the Division Bench in
the order impugned herein.
15. In a case for consideration for confirmation of death sentence under
Section 366 (1) Cr.P.C., the High Court is bound to examine the
Reference with particular reference to the provisions contained in
Sections 367 to 371 Cr.P.C. Under Section 367, Cr.P.C., when
Reference is submitted before the High Court, the High Court, if
satisfied that a further enquiry should be made or additional evidence
should be taken upon, any point bearing upon the guilt or innocence of
the convict person, it can make such enquiry or take such evidence
itself or direct it to be made or taken by the Court of Sessions. The
ancillary powers as regards the presence of the accused in such
circumstances have been provided under sub-Clauses (2) and (3) of
Section 367, Cr.P.C. Under Section 368, while dealing with the
Reference under Section 366, it inter alia provides for confirmation
of the sentence or pass any other sentence warranted by law or may
annul the conviction itself and in its place convict the accused for
any other offence of which the Court of Sessions might have convicted
the accused or order for a new trial on the same or an amended charge.
It may also acquit the accused person. Under Section 370, when such
Reference is heard by Bench of Judges and if they are divided in their
opinion, the case should be decided in the manner provided under
Section 392 as per which the case should be laid before another Judge
of that Court who should deliver his opinion and the judgment or order
should follow that opinion. Here again, under the proviso to Section
392, it is stipulated that if one of the Judges constituting the Bench
or where the appeal is laid before another Judge, either of them, if
so required, direct for rehearing of the appeal for a decision to be
rendered by a larger Bench of Judges.
16. When such a special and onerous responsibility has been imposed on
the High Court while dealing with a Reference under Section 366 (1),
Cr.P.C., we are shocked to note that in the order impugned herein, the
Division Bench merely recorded to the effect that the counsel for the
appellant pleaded for sympathy to commute the death sentence into one
for life for the offence falling under Section 302, IPC while praying
for maintaining the sentence imposed for the offence under Sections
376/511, IPC and that there was no opposition from the learned Public
Prosecutor. The Division Bench on that sole ground and by merely
stating that there was no use of force of severe nature on the victim
at the hands of the appellant and that the commission of offence of
murder cannot be held to be brutal or inhuman and consequently the
death sentence was liable to be altered as one for life for the
offence under Section 302, IPC. The Division Bench of the High Court
did not bother to exercise its jurisdiction vested in it under Section
366(1) Cr.P.C. read with Sections 368 to 370 and 392, Cr.P.C. in
letter and spirit and thereby, in our opinion, shirked its
responsibility while deciding the Reference in the manner it ought to
have been otherwise decided under the Code of Criminal Procedure. We
feel that less said is better while commenting upon the cursory manner
in which the judgment came to be pronounced by the Division Bench
while dealing with the Reference under Section 366 (1) while passing
the impugned judgment.
17. We are, however, duty bound to state and record that in a Reference
made under Section 366 (1) Cr.P.C., there is no question of the High
Court short-circuiting the process of Reference by merely relying upon
any concession made by the counsel for the convict or that of counsel
for the State. A duty is cast upon the High Court to examine the
nature and the manner in which the offence was committed, the mens rea
if any, of the culprit, the plight of the victim as noted by the trial
Court, the diabolic manner in which the offence was alleged to have
been performed, the ill-effects it had on the victim as well as the
society at large, the mindset of the culprit vis-à-vis the public
interest, the conduct of the convict immediately after the commission
of the offence and thereafter, the past history of the culprit, the
magnitude of the crime and also the consequences it had on the
dependants or the custodians of the victim. There should be very wide
range of consideration to be made by the High Court dealing with the
Reference in order to ensure that the ultimate outcome of the
Reference would instill confidence in the minds of peace loving
citizens and also achieve the object of acting as a deterrent for
others from indulging in such crimes.
18. It is unfortunate that the Division Bench of the High Court of
Rajasthan was oblivious of the above vital factors while disposing of
the Reference in such a cursory manner. It will have to be stated that
if the submissions of the counsel for the appellant before us are to be
considered on merits, they would only result in dealing with the issue
in such a manner which in the normal course should have been considered
and examined by the Division Bench while dealing with the Reference
under Section 366 (1). Since the said exercise ought to have been
carried out by the Division Bench while dealing with a Reference along
with the appeal preferred by the appellant, in fitness of things the
Division Bench is allowed to carry out that exercise as ordained upon
it. To emphasize upon the duty cast upon the Division Bench in such
cases of Reference, we reiterate that resorting to any such shortcut
course would reflect very badly upon the concerned Court.
19. We are convinced that it is the bounden duty of the Division Bench to
carry out such exercise in the manner set out above and we feel it
appropriate, therefore, to set aside the judgment impugned in this
appeal for that reason and remit the matter back to the High Court for
deciding the Reference under Section 366 Cr.P.C. in the manner it ought
to have been decided. Inasmuch as the conviction and sentence imposed
on the appellant was by the judgment dated 09.03.2007 of the trial
Court and the offence alleged was dated 16.01.2006, while remitting the
matter back to the High Court, we direct the High Court to dispose of
the Reference along with the Appeals expeditiously and in any case
within three months from the date of receipt of the records sent back
to the High Court. The appeal stands disposed of with the above
directions to the High Court.
…..……….……………………………..J.
[Dr.B.S. Chauhan]
…………….………………………………J.
[Fakkir Mohamed Ibrahim Kalifulla]
New Delhi;
September 12, 2012
