State of West Bengal Vs. Kajal Sarkar - Court Judgment

Excerpt:
- pranab kumar chattopadhyay, j.1. the appeal filed by kajal sarkar against his conviction and death sentence was registered as criminal appeal no. 262 of 2008. the other convicts preferred the appeal being criminal appeal no. 263 of 2008. the reference seeking confirmation of sentence of death was registered as death reference i of 2008. both the appeals and the death reference arise out of the judgment passed by the learned additional sessions judge, fast track court-ill, krishnanagar, nadia in sessions trial no. hi (sep) of 2005 arising out of sessions case no. 91(2) of 2005.2. the prosecution case, in short, is that one ratan sarkar lodged a written complaint before the officer-in-charge, taherpur r.o.p. on 17th march, 2004 where it was stated that his cousin sister, gouri sarkar got married with kajal sarkar, son of dilip sarkar residing at 'c' block, rasta no. 17, p.o. taherpur under p.s. ranaghat before one year as per hindu rites. it was alleged in the said written complaint that just after marriage, husband of said gouri sarkar namely, the convict/appellant, kajal sarkar, his brothers namely, uttam sarkar, santosh sarkar, balaram sarkar, toton sarkar and their father, dilip sarkar and mother, laxmi rani sarkar started inflicting assault and physical torture on gouri sarkar. on 17th march, 2004, at about 6.00 a.m. informant came to know that his cousin sister, gouri sarkar died in her matrimonial home. the informant at once came to the spot and found the dead body in the room of her husband. it was also mentioned in the said written complaint that the informant found injuries on the body, face and throat of gouri sarkar. the said informant believed that the accused persons namely, the convicts/appellants herein murdered gouri.3. initially, the aforesaid written complaint, which was treated as fir was submitted to the taherpur r.o.p. and thereafter the said fir was forwarded to ranaghat police station for starting a case. the ranaghat p.s. on the basis of the allegations mentioned in the aforesaid fir registered a case being ranaghat police station case no. 76/04 dated 17th march, 2004 under sections 498a/302/34, ipc against the convicts/appellants. after completion of the investigation, charge-sheet was submitted by the investigating officer under sections 498a/302/34, ipc against all the accused persons i.e. the appellants herein.4. the learned chief judicial magistrate, nadia thereafter committed the case to the learned sessions judge, nadia and the learned sessions judge, nadia transferred the case to the court of the learned additional sessions judge, fast track court-ill, krishnanagar, nadia for trial and disposal.5. the learned trial court after considering the material on record framed charges under sections 498a/302/34, ipc against all the accused persons, namely, the appellants.6. the accused persons namely, the appellants pleaded not guilty to the charges framed against them and claimed to be tried,7. in course of trial, the prosecution examined as many as 15 witnesses and some documents were also filed by the prosecution, which were marked as exhibits 1 to 10. no witnesses were examined by or on behalf of the accused persons.8. upon conclusion of the trial, the learned additional sessions judge, fast track court-ill, krishnanagar, nadia found the accused persons namely, the appellants in both the appeals guilty for committing the offence punishable under sections 498a/302/34, ipc and sentenced them to suffer rigorous imprisonment for three years and to pay a fine of rs. 5,000/- for commission of offence punishable under section 498-a of ipc and further sentenced to suffer imprisonment for life under section 304-b of ipc and further sentenced the appellant, kajal sarkar in cra no. 262 of 2008 to be hanged by neck till death and other appellants in cra no. 263 of 2008 to suffer imprisonment for life and to pay a fine of rs. 10,000/-, in default, to suffer simple imprisonment for two years for commission of offence punishable under section 302 of ipc and also directed that all the sentences shall run concurrently.9. on perusal of the judgment under appeal, we find that the learned trial court mainly relied on the inquest report and also the evidence of p.w. 2, p.w. 3 and p.w. 6. the convict/appellant, kajal sarkar, who suffered death penalty, made a confessional statement. the learned trial court, however, refused to rely on the confessional statement, which, according to the learned judge, is exculpatory in nature and moreover, during examination under section 313 of cr. p.c., the said accused-convict retracted the confessional statement by saying that he made the said confessional statement at the dictate of the investigating officer.10. on examination of the said confessional statement we find that the substantial part of the same is inculpatory in nature, which has been ignored by the learned trial judge. the convict/appellant, kajal in his confessional statement stated that he assaulted his wife on the fateful night which resulted the death and he admitted his guilt in this respect. the said appellant/convict, kajal in his aforesaid confessional statement categorically stated that his wife was killed by him and he is solely responsible for the said murder of his wife. in the said confessional statement, however, it has been stated that his wife had love affairs with someone as a result whereof he was annoyed with his wife and warned his wife. on the fateful night, the said appellant/convict, kajal was sharing the room only with his wife when he assaulted his wife, which caused the death.11. we do not find any reason to disbelieve the aforesaid confessional statement of the appellant/convict, kajal specially when the inculpatory part of the said confessional statement is substantially commensurating with the post mortem report, medical report and inquest report. furthermore, merely because confession was retracted afterwards, the same does not mean that confession was not at all voluntary in nature. the supreme court in the case of abdulvahab abdulmajid shaikh v. state of gujarat reported in 2007 (3) all i cri lr (sc) 480 : 2007 cri lj 3405 held:8. ...merely because the confession was retracted, it need not be taken as a confession made under pressure.... all confessions are invariably retracted at a later stage, therefore, the retraction by itself is not a ground to discard the confession by holding that it was not voluntarily made.12. taking all the aforesaid factors into consideration we do not find any difficulty in accepting the confession made by the accused-appellant, kajal specially when from other evidence on record we find ample corroboration of what had been stated in the confession. we are also satisfied from the said confessional statement that the accused-appellant, kajal gave intricate details of the incident and in the manner in which crime was committed.13. apart from the appellant/convict, kajal sarkar, other accused persons, namely the appellants in cra no. 263 of 2008 had no role to play on the fateful night although the case for demand of dowry sought to have been made out on behalf of the prosecution which are not at all convincing and acceptable for the reasons discussed hereinafter. evidence of p.w. 3 is very much relevant in this regard.14. in cross-examination the p.w. 3, the father of the victim specifically stated that he did not mention the fact of demanding money. during cross-examination, the said p.w. 3 deposed as under:i did not inform about the torture inflicted upon my daughter as i stated and also about the demand made upon her by the accused persons to any person....15. in any event, the other accused persons admittedly, were not in the room on the fateful night when the offence regarding murder of the victim was committed. the husband, kajal sarkar was the sole assailant.16. going through the confessional statement of the assailant husband, namely the appellant/convict, kajal sarkar we find that he had suspicion about the character and conduct of his wife and he expressed his annoyance and displeasure in this respect. on the fateful night, the quarrel between the husband and wife started not on account of any demand for dowry. it appears from the evidence of various p.ws. that the relationship between the husband and wife namely the appellant/convict, kajal and the victim, gouri was not very cordial, which was also known to the father of the victim, namely p.w. 3. the said p.w. 3 during cross-examination deposed as hereunder:.the matrimonial life in between kajal and gouri was not so good for all along and most of the time the relation was strain....17. on the fateful night, quarrel arose between the husband and wife namely, the appellant/convict, kajal sarkar and victim, gouri sarkar questioning the character and conduct of the said victim gouri. from the confessional statement of the convict/appellant, kajal we find that the said convict initially picked up quarrel with his wife and assaulted his wife by fist and blows and ultimately, decided to kill his wife and then to kill himself. thereafter, the said convict pushed his right hand inside the mouth of the victim as a result whereof the said victim died.18. we do not find adequate support from the evidence on record to the effect that the death of the victim was due to failure to meet the demand for dowry. the prosecution, in our opinion, has miserably failed to establish that the accused persons are responsible for inflicting physical and mental torture upon the deceased prior to her death demanding dowry and the death of the victim was due to non-fulfilment of the demand for dowry. we, therefore, do not agree with the findings of the learned trial court that the death of the victim, gouri sarkar was on account of failure to meet the demand of the appellants/convicts for dowry.19. the learned trial court heavily relied on the surthal report over the dead body of the deceased gouri by the concerned police officer. mr. sanyal, learned counsel representing the appellants submitted before this court that the investigating officer exceeded his, limit while preparing the inquest report. mr. sanyal referred to and relied on the decision of the supreme court in the case of rameshwar dayal v. state of u.p. reported in air 1978 sc 1558. the relevant portion of the said judgment is quoted hereunder:39. ...in fact, documents like the inquest reports, seizure lists or the site plans consist of two, parts one of which is admissible and the other is inadmissible. that part of such documents which is based on the actual observation of the witness at the spot being direct evidence in the case is clearly admissible under section 60 of the evidence act whereas the other part which is based on information given to the investigating officer or on the statement recorded by him in the course of investigation is inadmissible under section 162, cr.p.c. except for the limited purpose mentioned in that section....20. we find merits in the aforesaid submission of the learned counsel of the appellants.21. from the aforesaid discussions we are of the opinion that apart from the appellant/convict, kajal sarkar, other accused persons namely, the brothers, uttam sarkar, santosh sarkar, balaram sarkar, toton sarkar and their father, dilip sarkar and mother, laxmi rani sarkar had no role to play in causing the death of the victim and they were in no way connected with the murder of the victim.22. mr. asimes goswami, learned public prosecutor also fairly admitted that the other appellants in c.r.a. no. 263 of 2008 namely, the brothers, uttam sarkar, santosh sarkar, balaram sarkar, toton sarkar and their father, dilip sarkar and mother, laxmi rani sarkar were in no way connected with the murder of the victim, gouri sarkar as they were not found in the room where the said victim was assaulted, which ultimately caused her death.23. for the aforementioned reasons, the conviction and sentence awarded to the appellants in c.r.a. no. 263 of 2008 for the offences punishable under sections 498a/302/34, ipc and the conviction and sentence awarded to the appellant, kajal sarkar for the offences punishable under sections 498a/304b, ipc in cra 262 of 2008 cannot be sustained and the same are accordingly set aside. the conviction of the appellant, kajal sarkar under section 302 of ipc recorded by the learned trial judge is affirmed.24. now, we are to decide whether the death sentence awarded to the appellant, kajal sarkar was justified and warranted in the facts of the present case.25. in the case of bachan singh v. state of punjab reported in : (1980) 2 scc 684 : 1980 cri lj 636 and machhi singh v. state of punjab reported in : (1983) 3 scc 470 : 1983 cri lj 1457, the supreme court has formulated the principles and guidelines relating to award of death sentence.26. in bachan singh (supra), a constitution bench of the supreme court while upholding the constitutional validity of the penalty of death for murder specifically mentioned certain guidelines in the matter of sentencing a person under section 302 of ipc. the apex court specifically observed:201. with great respect, we find ourselves unable to agree to this enunciation. as we read sections 354(3) and 235(2) and other related provisions of the code of 1973, it is quite clear to us that for making the choice of punishment or for ascertaining the existence or absence of 'special reasons' in that context, the court must pay due regard both to the crime and the criminal. what is the relative weight to be given to the aggravating and mitigating factors, depends on the facts and circumstances of the particular case. more often than not, these two aspects are so intertwined that it is difficult to give a separate treatment to each of them. this is so because 'style is the man'. in many cases, the extremely cruel or beastly manner of the commission of murder is itself a demonstrated index of the depraved character of the perpetrator. that is why; it is not desirable to consider the circumstances of the crime and the circumstances of the criminal in two separate watertight compartments. in a sense, to kill is to be cruel and therefore all murders are cruel. but such cruelty may vary in its degree of culpability. and it is only when the culpability assumes the proportion of extreme depravity that 'special reasons' can legitimately be said to exist.209. there are numerous other circumstances justifying the passing of the lighter sentence; as there are countervailing circumstances of aggravation. 'we cannot obviously feed into a judicial computer all such situations since they are astrological imponderables in an imperfect and undulating society.' nonetheless, it cannot be overemphasised that the scope and concept of mitigating factors in the area of death penalty must receive a liberal and expansive construction by the courts in accord with the sentencing policy writ large in section 354(3). judges should never be bloodthirsty. hanging of murderers has never been too good for them. facts and figures albeit incomplete, furnished by the union of india, show that in the past, courts have inflicted the extreme penalty with extreme infrequency - a fact which attests to the caution and compassion which they have always brought to bear on the exercise of their sentencing discretion in so grave a matter. it is, therefore, imperative to voice the concern that courts, aided by the broad illustrative guidelines indicated by us, will discharge the onerous function with evermore scrupulous care and humane concern, directed along the highroad of legislative policy outlined in section 354(3), viz., that for persons convicted of murder, life imprisonment is the rule and death sentence an exception. 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 the rarest of rare cases when the alternative option is unquestionably foreclosed.27. as we have already discussed, the quarrel was picked up by the appellant kajal questioning the character and conduct of the victim wife and the said quarrel reached at an extreme stage when the convict/appellant, kajal decided to kill his wife and then to kill himself. the convict/appellant did not use any weapon and upon taking the decision to kill his wife pushed his right hand inside the mouth of the victim, which resulted in the death.28. considering the circumstances resulting in the murder of the victim it does not appear that the same is the rarest of the rare cases when the extreme penalty of death should be inflicted instead of life imprisonment which is the rule whereas death sentence is an exception. in the present case, we do not consider the life imprisonment to be an altogether inadequate punishment having regard to the relevant circumstances of the crime.29. mr. goswami, learned public prosecutor fairly admitted that the instant case is not in the category of the rarest of the rare cases where death sentence should be awarded. learned public prosecutor also submitted that sentence of life imprisonment in respect of the accused appellant, kajal sarkar will meet the ends of justice herein.30. the learned trial court, in our opinion, was not at all justified in imposing the capital punishment upon the convict/appellant, kajal sarkar without appreciating that it is not the rarest of the rare cases where the punishment of death should be passed.31. undoubtedly, all murders are the result of extreme cruelty but such cruelty vary in its degree of culpability as observed by the supreme court in bachan's singh case : 1980 cri lj 636. on a careful balancing of the aggravating and mitigating circumstances we are of the opinion that the present case is not the rarest of the rare cases which invites death penalty as, in our opinion, alternative option of life imprisonment is not foreclosed.32. we, therefore, commute the sentence of death imposed on the appellant/convict, kajal sarkar to life imprisonment while affirming the judgment and order of conviction under section 302 of ipc awarded by the learned trial judge.33. accordingly, the death sentence awarded by the learned trial court to the convict/appellant, kajal sarkar is modified into life imprisonment with fine of rs. 5,000/-, in default, to suffer rigorous imprisonment for a further period of two years.34. the appeal being c.r.a. no. 262 of 2008 preferred by the convict/appellant, kajal sarkar is thus allowed in part and the death reference is accordingly answered in the negative.35. as a result of the discussions and findings given earlier, the appeal being c.r.a. 263 of 2008 thus stands allowed. the appellants in c.r.a. 263 of 2008 namely, uttam sarkar, santosh sarkar, balaram sarkar, toton sarkar and their father, dilip sarkar and mother, laxmi rani sarkar are, therefore, acquitted of all the charges and we direct that they be released forthwith, if not required in any other case.36. the appellant, kajal sarkar in c.r.a. 262 of 2008 is now in jail. he is directed to serve out his sentence as modified by us in the manner as mentioned hereinabove.37. the criminal section is directed to send a copy of this judgment along with the lcrs to the learned trial court and the learned trial court shall issue a revised jail warrant in respect of the appellant, kajal sarkar in c.r.a. 262 of 2008 and forward the same to the correctional home where the appellant/convict is now detained.38. send a copy of this judgment to the superintendent of the concerned correctional home where the appellant/convict, kajal sarkar is now under detention for information and necessary action.39. urgent xerox certified copy of this judgment, if applied for, be supplied to the learned counsel for the parties upon compliance with all formalities.kishore kumar prasad, j.40. i agree.