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2006 DIGILAW 314 (JHR)

State Of Jharkhand v. Matkoo Marandi

2006-04-04

N.DHINAKAR, RAKESH RANJAN PRASAD

body2006
JUDGMENT 1. The accused appeals. 2. The appellant was tried for an offence under Section 302 I.P.C. The allegation against him in the charge is that he caused the death of Devi Besra D1, Mangal Marandi D2, Sunita Hembrom D3, Sunita Besra D4 and Manjhali Baski D5 at about 11.00 p.m. on 11.1.2003. The Trial Judge, on the oral and documentary evidence, finding the appellant guilty, sentenced him to death, which is being challenged in the appeal. The Death Reference is by the Sessions Judge for confirmation of the said death sentence and both are being disposed of by the following common judgment. 3. P.W. 1 Sabina Kiskoo is the wife of P.W. 2 Somai Besra. The appellant Matkoo Marandi is the father of Mangal Marandi D2. The appellant and the prosecution witnesses were residing in the village Hathmari Rasik Tola within the police limits of Barhait in Sahibganj district. On 11.1.2003 at 11.00 p.m., the appellant along with Devi Besra D1, who is his niece, and his son, Mangal Marandi D2, went to the house of P.W. 2 Somai Besra. He wanted to know from P.W. 1 as to the whereabouts of his wife. P.W. 1 informed the appellant that she has no idea about the whereabouts of the appellants wife. The son of P.Ws. 1 and 2 came out of the house. Thereafter the appellant along with Mangal Marandi D2 entered the house of P.W. 2. In the house, Devi Besra D1, Sunita Hembrom D3, Sunita Besra D4 and Manjhali Baski D5 were staying. The appellant on entering the house bolted the door from inside. P.W. 2 heard the cries of Devi Besra D1 and peeped through the hole. He found the appellant cutting Devi Besra D1, Sunita. Hembrom D3 and Manjhali Baski D5. Sunita Besra D4, grand-daughter of D3, fell down from the lap of Sunita Hemrom D3. When Mangal Marandi D2 started weeping, the appellant also inflicted injuries on him. On hearing the cries of P.Ws. 1 and 2, P.W. 4 Sallu Besra, P.W. 7 Burka Hansdal, P.W. 8 Banjamin Besra and P.W. 10 Rupchandra Besra rushed to the house and found the appellant inside the house. They sent information to the police and after the arrival of police, the tiles of the roof were removed. They found the dead bodies inside the house and the appellant was also in the house. They sent information to the police and after the arrival of police, the tiles of the roof were removed. They found the dead bodies inside the house and the appellant was also in the house. He was taken into custody. Ext. 4, fardbeyan, was given by P.W. 2 Somai Besra at 11.00 a.m. on 12.1.2003, on the basis of which a formal F.I.R, Ext. 5, was registered at the police station. The Investigation Officer, P.W. 12 Lalan Kumar Singh, took up investigation in the crime and conducted inquest over the dead bodies and the inquest reports are Exts. 3, 3/1, 3/2, 3/3 and 3/4. After the inquests, the bodies were sent to the hospital for post mortem. 4. On receipt of the requisition, P.W. 3 Dr. Bhagwat Murandi conducted autopsy on the dead bodies of Devi Besra D1, Sunita Hembrom D3 and Manjhali Baski D5. He conducted autopsy on the dead body of D1 Devi Besra and found the following injuries: (i) Sharp cutting wound on head on right parietal region-size 4" " 1" (ii) Sharp cutting wound on mid head-size 5" 1" 1" (iii) Multiple sharp cutting injuries on right leg below knee joint with compound fracture of Tibia and Fibula. The Doctor issued Ext. 1/1, the post mortem certificate, with his opinion that death is on account of shock and hemorrhage due to injuries to brain. He conducted autopsy on the dead body of D3 Sunita Hembrom and found the following injuries: (i) Sharp cutting wound on right, side of face-size 4" 1" " (ii) Sharp cutting wound on right side of forehead and parietal region-size 5" " " On dissection, the Doctor noticed fractures of underlined bones. The Doctor issued Ext. 1/2, the post mortem certificate, with his opinion that death is on account of shock and hemorrhage due to injuries to brain. He also conducted post mortem over the dead body of D5 Manjhali Baski. He noticed the following injuries: (i) Crushed lacerated wound on head and face. (ii) Lacerated wound on right knee with fractured underlined bone The Doctor issued Ext. 1, the post mortem certificate, with his opinion that death is on account of shock and hemorrhage due to the injuries to brain. 5. P.W. 11 Dr. He noticed the following injuries: (i) Crushed lacerated wound on head and face. (ii) Lacerated wound on right knee with fractured underlined bone The Doctor issued Ext. 1, the post mortem certificate, with his opinion that death is on account of shock and hemorrhage due to the injuries to brain. 5. P.W. 11 Dr. Lalit Mohan Prasad, on conducting autopsy on the dead body of Mangal Marandi D2, found the following injuries: (i) Incised wound on back of head measuring 3" 1" 1" with fracture of occipital bone (ii) Incised wound on back of head on right side measuring 2" 1" 1" with fracture of temporal bone (iii) Incised wound on back of head on left side measuring 2" 1" 1" with fracture of left parietal bone. The Doctor issued Ext. 3/5, the post mortem certificate, with his opinion that death is on account of shock and hemorrhage due to injuries to brain. Thereafter the Doctor conducted autopsy on the dead body of D4 Sunita Besra, daughter of P.W. 2. He did not find any external injury on the dead body but noticed that both the chambers of heart contained blood. The Doctor also found congestion of abdomen and brain. He issued Ext. 3/6, the post mortem certificate, with his opinion that she would have died on account of suffocation. 6. After the completion of investigation, final report was filed against the appellant. 7. The appellant, when questioned under Section 313 Cr.P.C, denied all the incriminating circumstances. He examined two person as DW 1 and DW 2. DW 1 Marang Moyee Soren was examined to show that P.W. 2 Somai Besra and his wife P.W. 1 committed the murder of D2 Mangal Marandi and that D3 Sunita Hembrom, D1 Devi Besra, and D5 Manjhali Baski were also killed in his presence and he did not attack any of the deceased. DW 2 Hari Nandan Murmu was examined to show that there was scuffle between Mangal Marandi D2 and P.W. 2, during which the wife of the appellant was present and she also suffered injuries. According to DW 2, the appellant got annoyed and P.W. 2 Somai Besra entered the house and murdered Sunita Hembrom D3, Sunita Besra D4 and Mangal Marandi D2 and Devi Besra D1 and Manjhali Baski D5. 8. According to DW 2, the appellant got annoyed and P.W. 2 Somai Besra entered the house and murdered Sunita Hembrom D3, Sunita Besra D4 and Mangal Marandi D2 and Devi Besra D1 and Manjhali Baski D5. 8. Learned Counsel appearing as Amicus Curiae for the appellant submits that it is improbable to believe the prosecution case that the appellant would have murdered his own son, Mangal Marandi, merely because he was found weeping and that the prosecution did not also establish any motive for the appellant to attack the deceased persons in the case. He submits that this is not the rarest of rare cases where the extreme penalty of law is called for. On the above submission, we have heard Mr. R. Mukhopadhaya, learned Counsel appearing for the State. 9. The two Doctors, Dr. Bhagwat Marandi and Dr. Lalit Mohan Prasad, who were examined as P.W. 3 and P.W. 11 and who conducted autopsies on the dead bodies, issued post mortem certificates for the injuries found on the deceased persons and gave evidence in court. Their evidence conclusively establish that D1, D2, D3 and D5 died on account of homicidal violence and that D4 Sunita Besra died on account of suffocation when she accidentally fell down from the lap of her grand-mother D3 Sunita Hembrom. 10. The prosecution, in order to establish that the appellant committed the above murders, examined P.W. 1 Sabina Kiskoo and P.W. 2 Somai Besra, who is the husband of P.W. 1. It has also come in the evidence that Devi Besra D1 is the cousin of the appellant and Mangal Marandi D2 is the son of the appellant. The other deceased are also related to each other. According to the two witnesses, the appellant went to the house of P.W. 2 accompanied by his son Mangal Marandi D2 and wanted to know from P.W. 2 as to the whereabouts of his wife and when she pleaded ignorance, the appellant, according to the witnesses, entered the house and thereafter inflicted injuries on four persons, as a result of which they died and Sunita Besra, a child, who was on the lap of D3, accidentally fell down and met her end. 11. On going through the evidence of P.Ws. 1 and 2, we find no infirmity in their evidence. In fact, their evidence is supported by P.Ws. 11. On going through the evidence of P.Ws. 1 and 2, we find no infirmity in their evidence. In fact, their evidence is supported by P.Ws. 4, 7, 8 and 10, who had come to the scene of occurrence on hearing the cries of the two witnesses. The other witness P.W. 5 though turned hostile, P.Ws. 4, 7, 8 and 10 supported the prosecution version by giving evidence in the court that on reaching the house of P.W. 2, they found the appellant inside the house with dead bodies. The evidence on record further shows that information was sent to the police and after their arrival, the tiles on the roof were removed and the appellant was seen inside the house with dead bodies. He was taken into custody and later fardbeyan was recorded by the police. The evidence of P.Ws. 1 and 2, who were witnesses to the occurrence and the evidence of P.Ws. 4, 7, 8 and 10, whose evidence is in the nature of res gestae, supported by medical evidence, conclusively establishes that the appellant has committed the offence as charged. We, accordingly, uphold the conviction of the appellant. 12. We have given our anxious consideration to the submission of the learned Counsel appearing for the appellants as regards the sentence. 13. In Machhi Singh and Ors. v. State of Punjab, the Supreme Court referred to Bachan Singh case and extracted the guidelines laid down in Bachan Singhs case. One of the guidelines laid down in Bachan Singhs case is that life imprisonment is the rule and death sentence is an exception. Death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances. A note of caution was also given that opting for the death penalty the circumstances of the offender also require to be taken into consideration along with the circumstances of the crime. 14. In Bachan Singhs case, the Supreme Court, while approving mitigating factors suggested by Dr. Chitley, further held that all situations cannot be fed into a judicial computer since they are astrological imponderables in an imperfect and undulating society. 14. In Bachan Singhs case, the Supreme Court, while approving mitigating factors suggested by Dr. Chitley, further held that all situations cannot be fed into a judicial computer since they are astrological imponderables in an imperfect and undulating society. The Supreme Court went on to add that it cannot be over-emphasized 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) and that Judges should never be bloodthirsty as hanging of murderers has never been too good for them. The Supreme Court, while referring to the data furnished by the Union of India, observed that the data albeit in complete 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. The Supreme Court further held that it is, therefore, imperative to voice the concern that courts, aided by the broad illustrative guidelines indicated by them, 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. The Supreme Court finally quoted by saying that real and abiding concern for the dignity of human life postulates resistance to taking a life through laws instrumentality and that ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed. 15. Keeping the above principle in mind, when we look at the facts of the case, it could be seen that the accused, who committed the above murders, can never be considered as a person who will be a menace to the society and that he cannot be reformed by sentencing him to imprisonment for life. It is also worthwhile to remember that on the facts of this case, the appellant committed the murder of the above persons, when P.W. 2 could not give the whereabouts of his wife and it shows that the appellant who is an impoverished illiterate acted in a heat of rage and attacked the victims without any motive. It is also worthwhile to remember that on the facts of this case, the appellant committed the murder of the above persons, when P.W. 2 could not give the whereabouts of his wife and it shows that the appellant who is an impoverished illiterate acted in a heat of rage and attacked the victims without any motive. In fact, Mangal Marandi is his own son and even, according to the prosecution, the appellant went to the house of P.W. 2 accompanied by Mangal Marandi and he was inflicted with injuries when he started weeping after seeing the appellant cutting other persons against whom also the appellant had no motive. Similarly, Devi Besra D1 also accompanied the appellant and suffered the fate of his son Mangal Marandi D2. Sunita Hembrom D3 died on account of the injuries, which she suffered, inflicted by the appellant. Sunita Besra D4 died on account of an accident when she fell down from the lap of her grand-mother, who is D3 in this case. 16. On considering the facts and circumstances of this case, we are unable to force ourselves to take a view that this case will fall within the concept of the rarest of rare cases for the appellant to be sentenced to death. In Subhash Ramkumar Bind @ Vakil and Anr. v. State of Maharashtra , the Supreme Court held that brutality by itself will not bring a case within the ambit of the rarest of rare cases. Similarly, in Lehna v. State of Harvana , the Supreme Court, while dealing with an accused who has committed multiple murders, held that a Judge has to balance the personality of the offender with circumstances, situations and reactions and choose the appropriate sentence to be imposed. The Supreme Court has further stated that the personality of the offender as revealed by his age (in this case the age of the appellant was 35 years on the date of occurrence), character, antecedents and other circumstances and the tractability of the offender to reform must necessarily play the most role in determining the sentence to be awarded and that special reasons must have some relation to the above facts. Ultimately, on the facts of the case, the Supreme Court held that since the murders were committed without any diabolic plan and it being an impulsive act, the case will not fall within the category of the rarest of rare cases and modified the sentence of death to one of life imprisonment. 17. The above case before the Supreme Court applies with all force to the facts of this case as we have already observed that the appellant committed the murder of the deceased in the case on an impulse when P.W. 2 feigned ignorance about the whereabouts of the appellants wife. 18. We, in the above circumstances and on the discussions made above, while confirming the conviction of the appellant, set aside the sentence of death imposed upon the appellant and instead sentence him to imprisonment for life. 19. In the result the appeal is dismissed with the aforesaid modification in sentence. The Death Reference is answered accordingly.