Crl.A. No. 211 of 2009 1

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 211 OF 2009

SURENDRA MAHTO ..... APPELLANT

VERSUS

STATE OF BIHAR ..... RESPONDENT

O R D E R

1. This  appeal  arises  out  of  the  following  facts:  

Ranjo Devi the deceased left her husband's village to  

meet her parents on the 13th of December, 2001 along with  

her husband the appellant herein.  As the two reached  

the market place in village Sakmohan at about 2:00p.m.,  

her husband stopped to rest for a while.   Ranjo Devi  

also met her mother in the market place and they were  

soon joined by her husband.  The two then decided to  

return home and while they were on their way, they met  

Manoj Kumar Pandit a friend of her husband in village  

Karak Pethia.  Manoj Kumar Pandit bought some kachari  

and he along with her husband ate the same and then went  

to the village nearby to have some liquor.  At about

Crl.A. No. 211 of 2009 2

5:00a.m. Ranjo Devi asked her husband to move along as  

home was some distance away but he replied that he would  

stay at the house of his friend Manoj Kumar.  Manoj  

Kumar, however, left for his residence followed by Ranjo  

Devi  and  her  husband.   As  the  two  reached  near  the  

railway  crossing  in  the  south  of  village  Karaka  the  

appellant  asked  her  to  have  intercourse  with  him  and  

despite her objections that they should not indulge in  

any such activity in the open he forced himself upon  

her.  The two thereafter proceeded towards village Aka  

Bishanpur  i.e.  the  village  of  Manoj  Kumar  Pandit  who  

also  met  them  just  outside  the  village.   The  three,  

accordingly,  went  on  together.   After  sometime  the  

appellant expressed the necessity of attending to the  

call of nature.  Ranjo Devi told the appellant that she  

would  sit  on  the  embankment  with  Manoj  but  the  

appellant told her to come to  the river bank.  She was  

thereafter forcibly undressed by the appellant and after  

he  had  shut  her  mouth  he  called  out  to  Manoj  Kumar  

Pandit to come running towards him.  She was thereafter  

sexually assaulted by the appellant followed by Manoj  

Kumar Pandit.  Manoj Kumar Pandit thereafter tied her  

hands with a plastic rope whereas the appellant took out  

a  knife  and  gave  three  blows  on  her  neck  with  the  

intention  of  killing  her.   She  was  thereafter  thrown

Crl.A. No. 211 of 2009 3

into the river so that she might drown.  The appellant  

as  well  as  Manoj  Kumar  Pandit  thereafter  moved  away  

whereafter Ranjo Devi who was still alive, managed to  

get out of the water to reach the toddy shop close by.  

The  toddy  shop  owner  P.W.  2  and  her  husband  P.W.  3  

thereafter gave her some clothes and also took her to a  

local doctor and informed the police station as well.  

Ranjo  Devi's  statement  was  recorded  in  village  Desai  

Chowk at about 9:30p.m. on the 13th of December, 2001 in  

which she gave the details mentioned above and further  

stated that the appellant had sought to get rid of her  

as he was having an affair with a girl in Delhi.  Ranjo  

Devi was first taken to the Primary Health Centre and  

thereafter  to  the  Samastipur  District  Hospital  for  

treatment.   She  then  returned  to  the  Primary  Health  

Centre and then moved on to her parents' home where she  

died  on  the  18th of  December,  1991.   The  inquest  

proceedings with respect to the death were subsequently  

held and the dead body was sent for its post mortem  

examination.  The doctor found that she had died due to  

Scepticemia as a result of the injuries suffered by her.  

The two accused i.e. the appellant before us and Manoj  

Kumar  Pandit  were  also  arrested  and  ultimately  were  

charged for offences punishable under Section 302/34 IPC  

whereas Manoj Kumar Pandit was charged for the offence

Crl.A. No. 211 of 2009 4

punishable under Section 376 IPC as well.   

2. The  prosecution  in  support  of  its  case  relied  

primarily on the dying declaration of the deceased Ranjo  

Devi  which  formed  the  basis  of  the  FIR  as  also  the  

evidence of P.Ws. 2 and 3 who  supported the prosecution  

case insofar as the injury suffered by her at the hands  

of  the  two  accused  was  concerned  but  disowned  their  

statements  under  Section  161  of  the  Code  of  Criminal  

Procedure with respect to the allegations of rape. P.Ws.  

7 and 9, the parents of the deceased, also proved the  

dying declaration that had been made to them by their  

daughter and which was in the same terms as the  FIR.  

Some of the other witnesses who had been identified by  

the prosecution were also declared hostile.  The trial  

court relying on the dying declarations, partly on the  

statements of P.Ws 2 and 3 as also on the statements of  

P.Ws.  7  and  9  convicted  both  the  accused  for  the  

offences under Section 302/34 and Manoj Kumar Panda for  

the offence under Section 376 of the IPC as well.  Manoj  

Kumar  Panda  was  awarded  two  sentences  of  life  

imprisonment  for  the  two  offences.   The  trial  court  

however, relying on a string of cases and in particular  

on Bachan Singh's case held that the balance sheet with  

respect  to  the  nature  of  the  incident  was  heavily

Crl.A. No. 211 of 2009 5

weighted  against  the  accused  appellant  Surender  Mahto  

inasmuch that he had been instrumental in killing his  

wife in a particularly inhuman and gruesome manner and  

had, accordingly, betrayed the trust between a husband  

and  wife  and  that  he  had  also  been  instrumental  in  

exposing  her  to  rape  by  his  co-accused  and  that  the  

motive was also reprehensible as he had wanted to get  

rid of her in order to marry his friend in Delhi.  The  

trial court finally held that the murder fell in the  

rarest  of  rare  category.   A  sentence  of  death  was,  

accordingly, awarded to the appellant.  The matter was  

referred to the High Court for the confirmation of the  

death  sentence  and  an  appeal  was  also  filed  by  the  

appellant.  The High Court has confirmed the conviction  

and sentence awarded by the trial court.  It appears to  

be the conceded position that Manoj Kumar Panda, the co-

accused, filed no appeal in the High Court.  The present  

appeal has been filed by Surender Mahto alone.

3. We have gone through the evidence with the help of  

the learned counsel.  We see that no fault can be found  

in the conviction of the appellant in the light of the  

dying declarations, the evidence of P.Ws. 2, 3, 7 and 9  

as supported by the medical evidence.  The deceased had  

made two dying declarations the first one to the police

Crl.A. No. 211 of 2009 6

which led to the registration of the First Information  

Report and the second to her parents.   

4. Much  argument  has  been  raised   by  the  learned  

counsel for the parties as to whether the death sentence  

in such a matter should be maintained or not.  It is  

true  that  the  incident  is  a  truly  reprehensible  one.  

The  facts  have  been  set  out  above  and  need  not  be  

reiterated, but we notice that as the appellant was a  

young man 30 years of age at the time of the incident,  

there is a possibility  that he may at some stage of his  

life have a reformation in his character.   We are also  

told that the appellant has a young daughter from his  

late wife and that the child is presently being looked  

after by her maternal grand mother.  We are cognizant of  

the  fact  that  each  of  these  factors  taken  up  

individually would not perhaps be sufficient to call for  

a  commutation  of  the  sentence  awarded  but,  if  

cumulatively taken, some extenuation in the sentence is  

called  for.   At  the  same  time,  keeping  in  view  the  

gravity of the offence we think that the award of a life  

sentence simplicitor would not meet the ends of justice.  

We, accordingly, feel that the death sentence should be  

commuted to life but the sentence of imprisonment for  

life  would  extend  to  the  full  life  of  the  appellant

Crl.A. No. 211 of 2009 7

subject to the statutory and constitutional powers of  

the  State  Government  and  the  Governor  insofar  as  

remission and commutation etc. are concerned.  We make  

an order in the above terms.

The appeal is disposed of.

    .........................J      [HARJIT SINGH BEDI]

    .........................J      [GYAN SUDHA MISRA]

NEW DELHI JULY 26, 2011.