KUNAL MAJUMDAR Vs STATE OF RAJASTHAN
Bench: B.S. CHAUHAN,FAKKIR MOHAMED IBRAHIM KALIFULLA
Case number: Crl.A. No.-000407-000407 / 2008
Diary number: 30520 / 2007
Advocates: ANUPAM LAL DAS Vs
MILIND KUMAR
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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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