Alok Kumar Basu, J.
1. The Additional Sessions Judge, 2nd Court, Berhampur in the district of Murshidabad while disposing of the Sessions Trial No. 237 of 2002 convicted Bishu Mondal under Sections 302/34 and 376(2)(G) of the Indian Penal Code and finally, passed an order of death sentence against said Bishu Mondal which gave rise to Death Reference Case No. 1 of 2004 since under the provision of the Code of Criminal Procedure, death sentence recorded by a Judge is subject to confirmation by this Court. Bishu Mondal also preferred an appeal against his order of conviction and sentence registered as Criminal Appeal No. 287 of 2004.
2. By our present order we propose to dispose of both the death reference as well as criminal appeal preferred by the convict appellant.
3. The Sessions Trial No. 237 of 2002 arose out of a written complaint lodged by Jannat Ali Mondal of village Mominpur under P.S. Domcal in the district of Murshidabad. Jannat Ali Mondal lodged the FIR on 2nd March, 1997 contending inter alia that on 2nd March, 1997 his niece Manoara Khatun left her house at about 10.30 a.m. for cutting grass at Mominpur Dakshin Math and said Manoara Khatun did not return till 2 p.m. At about 3.15 p.m. of the same date one Firoj Mondal came to the house of Manoara Khatun and informed that Manoara Khatun is lying on the field of one Ali Hossain with throat cut injury and in a naked condition and she was dead. Receiving this information Jannat Ali Mondal along with parents of Manoara Khatun, other relatives and other villagers rushed to the place of occurrence and found Manoara Khatun lying dead with throat cut injury and in naked condition. Jannat Ali Mondal and others noticed the wearing tape of Manoara in a torn condition and also mark of scratching of nail on her breast and also found blood coming from her vagina. At the place of occurrence one Moktar Mondal informed that when he was working in the nearby fields, hearing a cry from Manoara, he rushed to the place and found that Bishu Mondal is cutting throat of Manoara with an instrument called 'dauli' and one Ketab Sk. pressed two legs of Manoara catching hold of the same. Moktar Mondal also stated that seeing him both the accused fled away and Manoara breathed her last within a short time.
4. On the basis of the above complaint of Jannat Ali Mondal, Domcal P. S. started the case under Section 302/34 and under Section 376(2)(G) of the Indian Penal Code and finally submitted chargesheet against both Bishu Mondal and Ketab Sk. During trial as Ketab Sk. was found to be a juvenile, his case was split up for trial under the provisions of the Juvenile Justice Act and Bishu Mondal faced the trial before the learned Additional Sessions Judge.
5. After framing of charge both under Section 302 and under Section 376(2)(G) of the Indian Penal Code against Bishu Mondal, prosecution examined eight witnesses to prove prosecution charge and those witnesses included the doctor who conducted P.M. examination on the deadbody of Monoara Khatun and also the Investigating Officer. Prosecution examined Jannat AH Mondal who lodged the FIR and who reached the place of occurrence getting information of the death of Manoara, prosecution examined Moktar Mondal as P.W. 2 who along with P.W.3 Rafiq Mondal and P.W.5 Anarul Mondal witnessed the occurrence. Prosecution examined P.W.4 Abdul Gani Mondal in whose presence police recovered the 'dauli' as pointed out by Bishu Mondal by which Manoara was killed.
6. The learned Additional Sessions Judge after considering all the prosecution evidence and after hearing submissions of both the prosecution and the accused person convicted the accused both under Section 302 and under Section 376(2)(G) of the Indian Penal Code. The learned Additional Sessions Judge recorded in his judgment impugned in this appeal that witness Moktar Mondal as P.W. 2 himself saw Bishu Mondal to cut throat of Manoara Khatun with a 'dauli' and this statement of Moktar Mondal has been sufficiently corroborated by P.W.3 Rafiq Mondal and P.W.5 Anarul Mondal who came to the place of occurrence after hearing the shouting of Moktar Mondal when Moktar Mondal found Bishu Mondal to commit the murder and all the three witness have stated that they saw Bishu Mondal and the other accused Ketab Sk. to run away leaving the deadbody of Manoara Khatun in the field of Ali Hossain.
7. The learned Additional Sessions Judge also took note of the P.M examination report held by P.W. 7 Dr. Santosh Kr. Bhunia and his statement as P.W.8. The learned Judge was also satisfied about the recovery of the 'dauli' from the possession of Bishu Mondal and in this regard the learned Sessions Judge considered the statement of the doctor who corroborated that the injuries noticed on the person of Manoara Khatun could have been caused by using 'dauli' which was shown to the doctor at the time of his examination. The learned Additional Sessions Judge, therefore, considering the evidence of the prosecution which was both direct and convicting, found no difficulty to hold Bishu Mondal guilty for commission of the offence under Section 302 read with Section 34 of the Indian Penal Code.
8. Jannat Ali Mondal, uncle of Manoara Khatun who lodged FIR and who was also witness to the inquest held on the deadbody of Manoara Khatun soon after the occurrence, stated in the petition of complaint that Manoara Khatun was found in a naked condition with mark of scratch of nail on her breast and blood was also coming out from her vagina. The statement of Jannat Ali Mondal about the condition of Manoara Khatun soon after the occurrence was duly corroborated by P.W.2 Moktar Mondal, P.W.3 Rafiq Mondal and P.W.5 Anarul Mondal and the statement of P.Ws.1 to 3 and 5 found sufficient corroboration from the inquest report prepared by the police officer soon after the occurrence. P.W. 8 Dr. Bhunia also opined in his report after examination of the deadbody of Manoara Khatun that there was mark of sexual assault visible from the vagina of the victim. The learned Additional Sessions Judge after considering of all those evidence concluded that Manoara was also subject of sexual assault in the hand of accused Bishu Mondal and Ketab Sk. and accordingly, Bishu Mondal was also convicted under Section 376(2)(G) of the Indian Penal Code.
9. The learned Additional Sessions Judge after hearing submissions of the accused Bishu Mondal on the question of sentence and after taking into account all relevant facts and circumstances was of the view that the offence committed by Bishu Mondal along with Ketab Sk. came within the definition of 'rarest of the rare cases and only a sentence of death would be adequate and accordingly, without recording a sentence for life imprisonment, Bishu Mondal has been condemned to death by hanging.
10. Bishu Mondal through his petition of appeal before this Court submits that without any clear and convincing evidence he has been found guilty both under Section 302/34 and under Section 376(2)(G) of the Indian Penal Code. Bishu Mondal has further stated in his petition of appeal that no independent witness was examined by prosecution and depending on the testimony of some interested persons, the learned Judge has recorded the order of conviction which is not sustainable in law. On the question of sentence, Bishu Mondal has prayed for mercy and submits that the order of death sentence should be modified to that of sentence for life if he is at all found guilty of the offence under Section 302/34 and Section 376(2)(G) of the Indian Penal Code.
11. Appearing in support of the appeal, Mr. Sanyal has taken us through the evidence on record and also the judgment of the learned Trial Judge. Mr. Sanyal submits that from the FIR of P.W.I, Jannat Ali Mondal it appears that one Firoj Mondal gave the information of murder of Manoara Khatun to Jannat Ali Mondal and other relation of Manoara, but, surprisingly enough, that Firoj Mondal was not examined by the prosecution and this non-examination of Firoj Mondal must be considered to be fatal for the prosecution case and this important aspect has been totally ignored by the learned Trial Judge.
12. Mr. Sanyal submits that much importance has been placed on the testimony of P.W.2 Moktar Mondal who according to prosecution saw Bishu Mondal to cut throat of Manoara Khatun, but, on careful examination of the evidence of said Moktar Mondal as a whole, it would appear that Moktar Mondal is a chance witness and that apart, he being a relative of victim Manoara Khatun, no credibility can be placed on his testimony.
13. Mr. Sanyal submits that prosecution did not examine parents of the victim nor did prosecution examine other persons namely, Ohab Sk., Jainal, Siraj, Bodru and others who were present at the place of occurrence and these omissions on the part of prosecution would certainly make the prosecution case non-acceptable in the eye of law. Mr. Sanyal contends that the compliant of Jannat Ali Mondal was written by one Abdul Majid Mondal, but, said Abdul Majid Mondal was also not examined and this is also a serious lacuna in the prosecution case.
14. Regarding the point of recovery of the 'dauli', Mr. Sanyal has raised serious doubt as according to Mr. Sanyal another witness to the said recovery of the weapon namely, Moslem Mondal has not been examined. Mr. Sanyal also submits that no report of the forensic laboratory was also collected to show beyond reasonable doubt that the 'dauli' in question was actually used for commission of the offence of murder. Mr. Sanyal, therefore, concludes that taking as a whole the prosecution evidence it cannot be stated that prosecution succeeded beyond any shadow of doubt to prove the charges brought against the accused person and hence, the accused person is entitled to get the benefit of doubt and on that score, the learned Judge ought to have recorded an order of acquittal.
15. On the question of sentence and in connection with the death reference made by the learned Trial Judge, Mr. Sanyal submits with force that the present case by no stretch of imagination can be brought within the definition of 'rarest of the rare cases' so as to attract the punishment of death sentence. Mr. Sanyal submits that under the Code of Criminal Procedure sentence of life imprisonment must be considered as a rule and capital punishment must be considered only as an exception as the Code requires the learned Judge to record special reasons for awarding a sentence of death. Mr. Sanyal submits that while recording special reason in support of death sentence, the learned Judge is required to take into account all the mitigating circumstances standing in favour of the convict and the learned Judge is to draw a balance-sheet between the mitigating circumstances and the aggravating circumstances and only when the overall fact and circumstances will outweigh the mitigating circumstances standing in favour of the convict and only when the totality of the fact and circumstances would unerringly indicate that in this case sentence of life imprisonment cannot be considered to be adequate punishment, then and only then, the learned Judge should consider the question of imposition of death sentence.
16. Mr. Sanyal to substantiate his point has relied on the decision of the Hon'ble Supreme Court in the case of Amit @ Ammu v. State of Maharashtra, reported in 2003 SCC (Cri) 1959 and also State of Rajasthan v. Kheraj Ram, reported in 2003 SCC (Cri) 1979.
17. Mr. Sanyal contends that from the reasons assigned by the learned Judge in support of death sentence it does not appear that the learned Judge has applied the test fixed by the Apex Court in the matter of imposition of death sentence and the learned Judge was not justified at all to bring the present case within the definition of 'rarest of the rare cases' as held by the Apex Court and accordingly, the sentence of death imposed by the learned Judge must not get approval or sanction from this Court and in the interest of justice and fair trial, the sentence of death must be modified to that of imprisonment for life.
18. Mr. Goswami, appearing for the State has submitted both in support of reference and against the appeal preferred by the convict appellant. Challenging the appeal Mr. Goswami submits that prosecution seldom comes with such a foolproof case like the present one where the entire prosecution case depends on direct evidence of some most trustworthy and reliable witnesses. Mr. Goswami contends that in this particular case the prosecution case not only depends on direct evidence, but also such direct evidence has been duly corroborated by medical evidence through the P.M. report and the statement of doctor who conducted the P.M. examination.
19. Mr. Goswami submits that P.W.2 saw the appellant with his own eyes to commit the murder and P.W.2, P.W.3 and P.W.5 who were present at the place of occurrence at the time of commission of the offence, saw both the appellant and the other accused person on the spot and to run away after commission of the offence and there is no scope for the appellant to challenge the veracity of the statement of those witnesses. Mr. Goswami contends that the appellant while in police custody led the police party for recovery of the weapon used in commission of the murder and it appears from the statement of police officer as also from the statement of P.W.4 that at the instance of the appellant the weapon was recovered after digging of earth under a babla tree and the said weapon was seized after complying with all legal formalities and there is no scope whatsoever to call in question the act of recovery.
20. Mr. Goswami contends that it is true that in this unfortunate case the victim who was subjected to sexual assault in the hand of the appellant and another could not come forward to depose and naturally, prosecution relied on circumstantial evidence to prove the commission of rape. Mr. Goswami contends that P.W.I who lodged the FIR and who reached the P.S. soon after the occurrence, noticed the victim in naked condition with marks of nail scratching on her breast and also noticed blood coming out from the vagina of the victim. P.W.2, P.W.3 and P.W.5 also deposed in the same line and the statement of P.W.I, P.W.2, P.W.3 and P.W.5 was duly supported by the inquest report and the doctor who examined the victim in most clear and unambiguous term opined that the victim was subjected to physical assault before her death. Mr. Goswami submits that the circumstances under which the victim was killed, her physical condition and the statement of the witnesses who had the occasion to see the body of the victim soon after the murder unhesitatingly indicate that the victim was raped before her death and as the appellant and another was found committing the murder of victim, there is no other conclusion possible to draw, but to hold that appellant along with another committed gang rape before killing the victim. Mr. Goswami, therefore, concludes that there is no merit in the present appeal and the learned Trial Judge rightly having regard to the fact and evidence on record held that appellant guilty of both the offence under Section 302/34 of the Indian Penal Code and under Section 376(2)(G) of the Indian Penal Code and the appeal is accordingly bound to fail.
21. In support of the reference and on the question of sentence, Mr. Goswami has drawn our attention to the case of Dhananjay Chatterjee v. State, reported in 1994 Calcutta Criminal Law Journal (SC page 35 and submits that in a similar case of rape and murder, the convict was sentenced to death by the Trial Court and such sentence was confirmed up to the Hon'ble Supreme Court and there also the Hon'ble Supreme Court after taking into the fact and relevant circumstances into consideration came to the conclusion that in case of such gruesome murder with rape sentence of life imprisonment cannot be considered to be an adequate punishment and only the sentence of death would be a correct and appropriate punishment against the convict. Mr. Goswami submits that in this particular case also a minor girl aged about 13 or 14 in an unprotected manner was subjected to brutal force and sexual harassment and the convict after satisfying his lust killed the victim so as to suppress his dastardly act and hence, considering the totality of the fact and circumstances, every mitigating circumstance which the convict might have taken for a lesser punishment must be ignored considering the gravity of the offence and the manner in which such offence was committed and naturally, the learned Trial Judge rightly recorded a sentence of death and there is no scope thinking of any other alternative punishment in the given fact and circumstances.
22. We have heard both Mr. Sanyal and Mr. Goswami and W3 have also carefully examined the entire fact and evidence on record. From the evidence on record we find that in this case to bring home the charges framed against the appellant, the prosecution side has fully relied on direct evidence so far as the charge of murder is concerned and so far as the charge under Section 376(2)(G) is concerned in view of the peculiar fact and circumstances of the case, there was no scope of direct evidence as the victim was no longer in the world of living to come forward and to depose, but, the circumstantial evidence is so clear and so convincing that it has assumed the importance of almost direct evidence.
23. There is no denying of the fact that the victim came to the field away from her house for the purpose of cutting grass on that unfortunate date and there is no denying of the fact that witnesses to the occurrence were all working in the surrounding field and being attracted with the alarming shout of the victim, P.W. 2 at first rushed to the spot and found the appellant to cut the throat of the victim while his associate helped him to complete the act of murder. P.W. 2 at once raised alarm and hearing his sound of alarm P.W. 3 and P.W.5 along with other nearby workers in the field assembled and P.W.3 and P.W.5 along with P.W.2 saw the appellant and his associate to run away from the place of occurrence leaving aside the deadbody of the victim.
24. Appellant during his custody with the police led the police officer for the purpose of recovery of the weapon and it was the appellant who brought out the weapon after digging earth under a babla tree in presence of two independent witnesses and one of such independent witness namely, P. W.4 deposed before the Court about the manner of recovery and the act of seizure and there is no scope of any doubt to hold that the act of recovery and seizure was the brainchild of the Investigating Officer.
25. The Medical Officer who was examined as P.W. 8 has deposed in Court that the injuries which caused the death of the victim were the result of the use of the weapon which was recovered from the possession of the appellant and this testimony of the doctor corroborates and supports the testimony of P.W.2, P.W.3 and P.W.5. We have carefully examined the cross-examination of all the material witnesses and we hold that appellant did not succeed in the least to bring out anything during cross-examination which would affect the credibility of any of the material witnesses who deposed in support of the prosecution case. Thus, having regard to the submission of Mr. Sanyal appearing for the appellant and after careful consideration of the entire fact and evidence on record, we are unable to accept the points taken by Mr. Sanyal against the order of conviction under Section 302/34 of the Indian Penal Code and hence, we have no hesitation to hold that the learned Trial Judge rightly convicted the appellant under the said charge and we find no reason to interfere with the same.
26. As regards the charge under Section 376(2)(G) of the Indian Penal Code, we have stated earlier that in this part of the prosecution case, prosecution has relied on circumstantial evidence only, because, the victim was no longer there to support the prosecution case. Now, from the statement of P.W.I, P.W.2 and P.W.5 and from the statement of the doctor as P.W.8, we find sufficient evidence to hold conclusively that the victim was subjected to sexual assault before her death and even the inquest report lends support to this conclusion without any scope of doubt. The circumstances under which the deadbody of the victim was noticed by P. W. 1 and other witnesses, the mark of injury on her body particularly on the private part of the victim and other surrounding circumstances unerringly showed that the appellant and his associate committed rape on the victim before killing her and further the conduct of the appellant and his associate soon after the occurrence also give no scope to hold otherwise. Thus, having regard to the fact and evidence on record and after considering the submissions of both Mr. Sanyal and Mr. Goswami we hold that prosecution succeeded beyond any shadow of doubt to bring home the charge under Section 376(2)(G) against the appellant and accordingly, we also uphold the order of conviction in this regard against the appellant.
27. Now, we come to the final part of our discussion relating to the question of sentence. Mr. Goswami representing the State has supported the death reference while Mr. Sanyal has argued against imposition of sentence of death.
28. Under the provisions of the Code of Criminal Procedure as indicated in Section 354(3), special reasons must be recorded when the learned Trial Judge decides not to pass a sentence of life imprisonment and imposes a sentence of death against a convict. There is no hard and fast rule or strait-jacket formula to define such special reasons as provided in the Code of Criminal Procedure. The Hon'ble Supreme Court in the case of Bachan Singh v. State of Punjab, reported in 1980 SCC (Cri) 580, observed 'a real and abiding concern for the dignity of human life postulates resistance to taking a life through law's instrumentality. That ought not to be done save in 'rarest of the rare cases' when the alternative option is unquestionably foreclosed'. From the above observation of the Apex Court in the Bachan Singh we, for the first time, got a guideline regarding formulation of the special reason before imposition of death sentence and to be more specific following the guidelines of the Apex Court, in general while imposing a sentence of death bring such a case within the parameter 'rarest of the rare cases'.
29. The guideline of the Hon'ble Supreme Court rendered in the case of Bachan Singh in the matter of making a choice between death sentence and life imprisonment was further illustrated in the case of Machhi Singh v. State of Punjab, 1983 SCC (Cri) 681.
30. It is pertinent to mention that there is no statutory prohibition against imposition of death sentence till death but, while imposing a sentence of death the Court is required to exercise its discretion following the guidelines of the Apex Court as stated in the cases Bachan Singh and Machhi Singh and the synopsis of such guidelines is that a balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between aggravating and the mitigating circumstances before the option for death sentence is exercised.
31. Mr. Goswami has drawn our attention to the decision of the Apex Court in the case of Dhananjoy Chatterjee (supra), where in a similar case of murder with rape, the convict was awarded sentence of death and such sentence got the approval and sanction from the Apex Court and being inspired from the said decision of the Apex Court, Mr. Goswami submits that here in this case also when the convict is found guilty of murder with rape there should not be any hesitation from this Court to confirm the sentence of death as awarded by the learned Trial Court.
32. We have already indicated that Mr. Sanyal has also relied on a decision of the Hon'ble Supreme Court in the case of Amit @ Ammu (supra) where also in a case of rape and murder, the Apex Court did not approve the sentence of death, but, modified the sentence of death to one for life imprisonment and naturally, we do not find any logic in the submission of Mr. Goswami that a strait-jacket formula can be framed on the matter of awarding death sentence in every case of murder with rape, on the contrary, in our considered view each case must be decided on its own merit and following the guidelines of the Apex Court given in the case of Bachan Singh and Machhi Singh (supra), the Court is required to draw a balance-sheet of aggravating and mitigating circumstances of a given case under consideration.
33. In this particular case we find from the record that the appellant committed the crime along with another associate who was adjudged as juvenile and that associate faced his trial under the provisions of the Juvenile Justice Act. We further get from the evidence that at the time of the incident the appellant was about 20 years of age, there is no record of any previous heinous crime committed by the appellant and there is also no evidence that he will be a danger to the society if the death sentence is not awarded. We are equally convinced that the offence committed by the appellant deserves severe condemnation and is a most heinous crime, but, on cumulative fact and circumstances of the case we do not think that this case falls within the category of 'rarest of the rare cases'.
34. We have given our anxious consideration to the special reasons recorded by the learned Judge in support of his death sentence awarded against the appellant, but, after taking an overall view of the surrounding fact and circumstances, we are of the view that the case of the appellant does not come within the definition of 'rarest of the rare cases' and on this consideration alone, we are unable to persuade ourselves to accept the reference and to uphold the contention of Mr. Goswami in support of the death sentence.
35. Accordingly, we are of the view that it will sufficiently meet the ends of justice if we modify the sentence of death to that of imprisonment for life.
36. In view of our above discussion, the criminal appeal is dismissed and the death reference is refused.
37. The order of conviction recorded by the learned Judge against the appellant under Section 302/34 and under Section 376(2)(G) of the Indian Penal Code is hereby confirmed. The appellant is sentenced to suffer R.I. for life and to pay a fine of rupees ten thousand in default R.I. for another two years.
38. Issue modified jail warrant accordingly at once in the name of the Superintendent of Jail where the appellant is lodged. Let a copy of this judgment and order be forwarded to the learned Trial Judge.
39. L.C.R. be transmitted to the Court of the learned Trial Judge forthwith. A copy of this judgment be also handed over to the learned Advocates for the appellant as expeditiously as possible free of cost.
Pranab Kumar Deb, J.
40. I agree.