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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 366(1), 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.   

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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  

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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  

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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.

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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  

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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.

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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    

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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  

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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.   

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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  

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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  

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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  

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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.   

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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.   

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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  

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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

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