SURENDRA MAHTO Vs STATE OF BIHAR
Bench: HARJIT SINGH BEDI,GYAN SUDHA MISRA, , ,
Case number: SLP(Crl) No.-000941-000941 / 2009
Diary number: 17424 / 2008
Advocates: Vs
GOPAL SINGH
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.