Judgment :- (1.) THE death reference and the appeal arose out of an order dated 16th May, 2006 passed by the Additional Sessions Judge. Fast Track court, Nabadwip in Sessions Trial No. 14 (Vlll)/2003 arising out of Sessions case No. 62 (8)/2005 by which the appellant was convicted of an offence under Section 302 of the Indian Penal Code for murdering Anima Pramanik, aged about 30 years and her son Subhankar Pramanik @ Kebal, aged about 12 years ; under Section 307 of the Indian Penal Code for attempting to murder Jeevan Krishna Chakraborty, aged about 60 years and under Section 326 of the Indian Penal Code for assaulting the said Jeevan Krishna chakraborty with a dao on his left wrist causing fracture and dismemberment of his right index finger. By the order dated 17th May, 2006 the convict was sentenced to death for the offence under Section 302 of the Indian Penal code subject to confirmation by this Court in terms of Section 366 of the cr. P. C. The convict was also sentenced to suffer rigorous imprisonment for 7 years and to pay a fine of Rs. 5,000/-in default to suffer rigorous imprisonment for a further period of six months for the offence punishable under Section 307 of the Indian Penal Code and he was also sentenced to suffer rigorous imprisonment for 5 years and to pay fine of Rs. 5,000/-, in default to suffer further rigorous imprisonment for three months for the offence punishable under Section 326 of the Indian Penal Code. Both the reference and the appeal have been heard together and this judgment will govern both the reference and the appeal. (2.) THE prosecution version briefly stated is as follows :- On 7th May, 2005 at about 11.15 hrs. a telephonic message was received by the P.W. 37 N.C. Mondal, an Assistant Sub-Inspector of nawadeep Police Station, intimating him that between 10.45 hrs. and 11.10 hrs. on 7th May, 2005 one Haru Ghosh, son of Mohan Ghosh of ramchandrapur Ghoshpara, assaulted three persons of the said village by a sharp cutting dao and tried to assault others and that police help was immediately needed. Shri Mondal recorded a G. D. Entry bearing No. 300 dated 7th May, 2005 and informed the Inspector-in-Charge of the Nabadwip police Station. Shri Mondal recorded a G. D. Entry bearing No. 300 dated 7th May, 2005 and informed the Inspector-in-Charge of the Nabadwip police Station. Shri Amitava Ghosh (P.W. 39) Inspector-in-Charge, nabadwip Police Station, along with Sub-Inspector Arup Kumar Sarkar and available police force proceeded to Ramchandrapur Ghoshpara and reached at about 11.25 A.M. They met the informant Samir Ghosh (P.W. 1) who narrated to them the occurrence that had taken place. The bodies of a female and a male child, near the tubewell of the house of the victims, were found. P.W. 39 Mr. Amitava Ghosh asked the informant Mr. S. Ghosh to state the occurrence in writing in pursuance whereof a written complaint was submitted by him which has been marked exhibit 1. The written complaint was sent to the police station for starting a case which was started at 1. 15 a. M. on 7th May, 2005 as would appear from the evidence of the Assistant sub-Inspector D. Sankar (P.W. 38). P.W. 42 Mr. D. Sarkar the accompanying officer started interrogation. (3.) FROM the written complaint it appears that upon hearing a hue and cry the complainant (P.W. 1). aged about 21 years, came out of his house and found the accused Haru Ghosh, aged about 35 years, strangulating Subhankar Pramanik, aged about 12 years. Upon intervention subhankar was released from the clutches of Haru. Subhankar was already bleeding from his mouth. Anima, mother of Subhankar, took him to the nearby tubewell. She was pouring water on his mouth and face. Shyamal ghosh, a neighbour, with a dao in his hand was watching the incident. Haru snatched the dao from Shyamal Ghosh and started assaulting Subhankar and Anima with the aforesaid dao indiscriminately. Both of them collapsed on the ground with severe bleeding injuries Hani thereafter ran with the dao. A few minutes later the informant had come to know that Haru Ghosh had gone to Jeevan Krishna. Chakrabortys house and hacked him with the aforesaid dao. The informant also came to know that Haru had also gone to the house of one or two others. The bleeding Anima and Subhankar with the help of police were sent to the Pratapnagar Hospital. Anima was declared brought dead. Subhnakars condition was stated to be very critical. Chakrabortys house and hacked him with the aforesaid dao. The informant also came to know that Haru had also gone to the house of one or two others. The bleeding Anima and Subhankar with the help of police were sent to the Pratapnagar Hospital. Anima was declared brought dead. Subhnakars condition was stated to be very critical. (4.) FROM the evidence adduced, it appears that Samir (P.W. 1) upon hearing the hue and cry from the house of Buddhadev Pramanik, rushed to the spot and found Haru Ghosh pressing the throat of Subhankar. He was also assaulting him with fists and blows. P. W. 1 Samir and his mother Sabitri (P.W. 2) and the neighbours namely Adhir (P.W. 8) and his wife Bandana (P.W. 3) intervened and rescued Subhankar from the clutches of Haru ghosh. P.W. 2 Sabitri deposed that she was in her house when Anima called out saying "help help, Aunt Haru has almost done to death my Kebol. She instantly rushed to the locale. She has corroborated the evidence of the P. W. 1. So did Bandana (P. W. 3) who deposed that the incident of pressing the throat of Subhankar took place in the bedroom of Buddhadev pramanik. Subhankar was bleeding from the mouth. P.W. 8 Adhir also corroborated the evidence of the aforementioned witnesses. P.W. 8 Adhir added that after releasing Subhankar, Haru caught hold of the right hand of adhir. Adhir pulled Haru outside the house and with a jerk freed himself. Kebols mother took him to the tubewell. Atasi (P.W. 5) pumped the tubewell and Anima was pouring water on the face and head of Subhankar @ Kebol P.W. 6 Shyamal Ghosh on the fateful moment was going towards his field to cut banana leaves for feeding the cattle. He had a dao in his hand. Hearing the hue and cry in the house of Buddhadev Pramanik he had stopped near the tubewell of Buddhadev Pramanik. He saw Atasi pumping the tubewell and Anima pouring water on her son Kebol. Haru suddenly snatched away the dao from his hand. Shyamal (P. W. 6) requested him to return the dao but he would not. Shyamal applied force to take it back but he was pushed aside by Haru with a jerk. Haru ran with the dao and chopped on the neck of Anima. He thereafter struck on the hand of kebol. Haru suddenly snatched away the dao from his hand. Shyamal (P. W. 6) requested him to return the dao but he would not. Shyamal applied force to take it back but he was pushed aside by Haru with a jerk. Haru ran with the dao and chopped on the neck of Anima. He thereafter struck on the hand of kebol. Kebols hand was severed from the wrist. He thereafter struck incessantly the mother and the son. Both of them collapsed on the ground. Shyamal (P. W. 6) was overawed by the incident and ran to the house of Nilmani Ghosh. Atasi (P. W. 5)immediately after the first blow on Anima on her shoulder had escaped from the place of occurrence and bolted herself in her house. Another neighbour (P. W. 4) Namita had reached the place of occurrence at the time when Anima was pouring water on the face and head of Kebol. P. W. 1 samir deposed that he was shocked and afraid. He thought that both the mother and the son had died. He and his mother (P. W. 2) fled from the place. None tried to rescue the victims out of fear. P. W. 1 deposed that he had seen Haru running away with the dao towards the interior of the locality. P. W. 2 deposed that her son (P.W. 1) informed the matter to the police over telephone. P. W. 3 deposed that she and her husband (P.W. 8) had left the place after the hand of Subhankar had been severed. P. W. 4 Namita deposed that she had her baby in her lap. She had seen Anima lying at the spot and Kebol being dealt blows by the dao on his face and eyes. His hand had already been severed from the wrist. Haru looked towards his house and ran away pushing her aside. It has come from the evidence of the P. W. 31 Buddhadev Pramanik, the husband and the father of the aforesaid victims that the house of Haru is situate just opposite to that of Buddha. (5.) FROM the evidence of the P. W. 10 Sikha it appears that between 10.30 A. M. and 11.00 A. M. on 7th May, 2005 she was cooking food in the verandah and her father-in-law Jeevan Krishna Chakraborty, a member of the Gram Panchayat, was sitting. He had earlier complained that he was not feeling well. (5.) FROM the evidence of the P. W. 10 Sikha it appears that between 10.30 A. M. and 11.00 A. M. on 7th May, 2005 she was cooking food in the verandah and her father-in-law Jeevan Krishna Chakraborty, a member of the Gram Panchayat, was sitting. He had earlier complained that he was not feeling well. Haru appeared at the verandah with a blood smeared dao. He approached Jeevan and told him that "he had finished Anima and Kebol and would finish him as well". P. W. 12 Jeevan Krishna Chakraborty corroborated the evidence of P.W. 10 Sikha. He added that Haru assaulted him with a dao indiscriminately on his head, back and on both of his hands, chin near the throat, three teeth near the lower jaw were dislocated due to assault which had to be removed. (6.) THE learned Trial Judge has observed as follows :-"witness rose his right hand and showed his right index finger has been cut down, he showed his left hand with three long cut marks on the left palm. (The witness was permitted to remove his shirt and he showed several long cut marks on his back and on both his upper arms. He also showed a cut mark below his chin near to the throat). " (7.) P.W. 12 further deposed that his daughter-in-law Sikha (P. W. 10)raised alarm while he was being assaulted by Haru. On hearing the hue and cry Jayanta and Prasanta both sons of the victim Jeevan Krishna chakraborty and a neighbour Uttam came running to the place and intervened. Haru left Jeevan and chased his sons and Uttam with the dao in his hand. P.W. 26 Prasanta corroborated the evidence of P.Ws. 10 and 12 and added that at the time when his father was being assaulted except for Sikha (P.W. 10) and Haru none else was there. He further deposed that when he, his brother and the neighbour Uttam were chased he took shelter in the house of Manik Ghosh. P.W. 29 Jayanta deposed that when Haru had rushed at them he ran away. After sometime he came back to his house only to find his father lying in a pool of blood. P.W. 30 Uttam deposed that when Haru had chased them he fled away form the place. P.W. 13 Nilmani ghosh deposed that Jeevan Krishna Chakraborty was chopped on different parts of the body. After sometime he came back to his house only to find his father lying in a pool of blood. P.W. 30 Uttam deposed that when Haru had chased them he fled away form the place. P.W. 13 Nilmani ghosh deposed that Jeevan Krishna Chakraborty was chopped on different parts of the body. P. W. 13 had visited him in the hospital on the date of the incident itself. So did the P. W. 17 Shri Biswajit Ghosh. P. W. 27 Sushanta another son of Jeevan deposed that he at the relevant time was in his shop. When he found that his father Jeevan Krishna Chakraborty was being taken to the hospital in a trolley he joined his father and accompanied him to the hospital, P. W. 34 Dr. Kanchan Kumar Sarkar deposed that Jeevan Krishna chakraborty, aged about 60 years, had told him that he had been assaulted by Haru Ghosh with a katari on 7th May, 2005 at 10. 30 A. M. The doctor recorded the history given by the patient in his injury report which has been marked exhibit 28/1. (8.) HARU after assaulting Jeevan Krishna Chakraborty had entered the house of Nilmani Ghosh (P.W. 13). Nilmani Ghosh deposed as follows :-"mausumi my second daughter-in-law was in the first floor and she raised an alarm that Haru Ghosh was returning. I shut the outer door of our house. Mausumi indicated from top that Haru was approaching through the house of my younger brother. I took a look in their premises across my boundary wall and saw Haru wielding a daa stained with blood. Haru also had stains of blood over his face, head and all over. I got hold of a small bamboo baton and tried to wade off haru and asked him not to enter my house. Hani climbed the veranda of my brothers house and then stepped over on the low boundary wall of my house and threatened me that he will not spare me. I left the bamboo baton and ran into my house. My three sons were in the house. On hearing the bang of the door they came out." (9.) NILMANI Ghoshs son Sakhhi Ghosh (P.W. 7). Bahadur Ghosh (P.W. 9), Biswajit Ghosh (P.W. 17) and Gautam Ghosh overpowered and apprehended Haru Ghosh. P.W. 7 deposed as follows :- "I heard my "boudis" (sister-in-law) shouting from the first floor that haru was returning. On hearing the bang of the door they came out." (9.) NILMANI Ghoshs son Sakhhi Ghosh (P.W. 7). Bahadur Ghosh (P.W. 9), Biswajit Ghosh (P.W. 17) and Gautam Ghosh overpowered and apprehended Haru Ghosh. P.W. 7 deposed as follows :- "I heard my "boudis" (sister-in-law) shouting from the first floor that haru was returning. I saw Haru was trying to enter into our house by scaling the boundary wall after passing through the house of my uncle. Sricharan Ghosh. At that time Haru was holding the blood stained "dao" in his hand. My father Nilmoni on seeing Haru approaching our house out of fear went inside. My elder brother Bahadur Ghosh was standing on the verandah of our house. Haru Ghosh on seeing brother threatened him that he had already chopped three persons and it was his turn to be chopped. Out of fear and for the purpose of saving his life my elder brother Bahadur Ghosh caught Haru tight by his hand in which he was holding the dao. In order to protect my brother as well as to save ourselves I dealt a blow with a "dasha" (wooden bar) on the head of Haru. Haru tell down on the courtyard. Then bahadur Ghosh my brother, my second elder brother Bablu Ghosh, my younger brother Biswajit my cousin. Sanat Ghosh, Goutam Ghosh apprehended Haru and tied him a rope. Gautam Ghosh hit Haru on his hand with a brickbat at this Haru left the dao loose. Police reached the locality at that time." (10) P.W. 9 Bahadur Ghosh, P.W. 16 Sanat Ghosh materially corroborated the evidence of the P.W. 7 Sakhhi Ghosh. P. W. 16 deposed that Sakhhi Ghosh dealt a blow on the backside of Harus head with a dasha (wooden bar). Haru fell down. Gautam hit Haru with a brickbat on his hand to take away the dao. On being hit on his hand Harus grip of the dao was loosened. A rope from the house of the P.W. 16 Sanat was brought and haru was tied. By that time the police reached the place. Haru fell down. Gautam hit Haru with a brickbat on his hand to take away the dao. On being hit on his hand Harus grip of the dao was loosened. A rope from the house of the P.W. 16 Sanat was brought and haru was tied. By that time the police reached the place. The offending weapon namely the dao with the wooden butt approximately 20" long was seized under a seizure list in the house of Nilmani Ghosh which has been marked material exhibit i and has been identified by the owner thereof the P.W. 6 Shyamal Ghosh, P.W. 13 Nilniani Ghosh, P. W. 16 Salat Ghosh and P.W. 17 Biswajit Ghosh. The ganjee of Bahadur Ghosh, which had become bloodstained in seeking to overpower. Haru was also seized which has been marked material exhibit ii. Haru was arrested from the house of nilmani Ghosh. He was taken to Dr. Mishra (P.W. 41). He deposed that he "found two lacerated injuries on his occipital area, parallely situated. One sharp cut injury present on the cheek just below the Jell eyelid. I also found one lacerated injury on the middle right index finger." (11.) IN cross-examination Dr. Mishra deposed that Haru told him that he had been assaulted by Bahadur Ghosh. (12.) THE accused in his examination under Section 313, Cr. P.C. in answer to question No. 30 admitted that he had entered the house of Nilmani Ghosh. In answer to question No. 31 he admitted that Sakhhi Ghosh had struck him on his head and Bahadur hacked him on his hand. In answer to question No. 3 he admitted that he was arrested in the house of Nilmani ghosh. In answer to question No. 51 he admitted that after his arrest he was taken to the P. W. 41 Dr. Mishra. He had examined him and he told the doctor that he had been hit by Bahadur Ghosh in the house of Nilmani ghosh. (13.) P. W. 34 Dr. Kanchan Kumar Sarkar deposed that on 7th May, 2005 Anima Pramanik was brought to the State General Hospital, Nawadeep at about 11.35 A. M. She however had died before she reached the hospital. He submitted a report to that effect which is exhibit 28. Subhankar @ kebol died shortly after reaching the hospital. P.W. 18 Dr. Haider had conducted the postmortem on the dead body of Anima. He submitted a report to that effect which is exhibit 28. Subhankar @ kebol died shortly after reaching the hospital. P.W. 18 Dr. Haider had conducted the postmortem on the dead body of Anima. He found as many as six sharp cut injuries on the body of the deceased Anima. In his opinion death was due to shock and hemorrhage following the injuries which were all ante-mortem and homicidal in nature. The postmortem report of Anima praminik has been marked exhibit 14. He also conducted the postmortem on the dead body of Subhankar and found as many as 10 injuries. The right wrist joint of the deceased had separated completely. In his opinion the death was due to shock and hemorrhage following the injuries which were all ante-mortem and homicidal in nature. The postmortem report has been marked exhibit 15. In his cross-examination he was suggested that the victim had suffered injury due to a vehicular accident which the doctor denied as completely improbable. (14.) AFTER postmortem on the dead bodies of Anima and Subhankar were conducted the saree, saya and blouse of the deceased Anima and the half pant of the deceased Subhankar @ kebol were seized on 8th May, 2005 vide seizure lists which have been marked exhibits 22 and 23. The aforesaid wearing apparels along with the offending weapons and other seized articles were sent to the forensic laboratory. As per the report of the serologist the seized articles contained human blood. The report was marked exhibit 33. Exhibit 34 the FSL report goes to show that the saree and saya contained double edged cut marks which matched with the dao which was found to produce double edged sharp cuts. (15.) P. W. 33 Prasanta Ghosh deposed that the incident as a news item was shown in the television which he had watched. Out of curiosity he had called Telephonically the wife of Jeevan Krishna Chakraborty (P.W. 12) to know more about the same when she confirmed that the incident had taken place. (16.) THE evidence discussed above, in our view, establishes beyond any reasonable doubt the guilt of the accused appellant. Further assurance in this regard is lent by the facts and circumstances narrated hereinbelow. (16.) THE evidence discussed above, in our view, establishes beyond any reasonable doubt the guilt of the accused appellant. Further assurance in this regard is lent by the facts and circumstances narrated hereinbelow. (17.) P.W. 1 Samir Ghosh was suggested that the Muslim cattle traders used to frequent the house of the deceased Anima Pramanik as regards which the P. W. 1 had no knowledge. The suggestion and answer is reproduced hereinbelow:- "I am not aware that any Muslim trader used to visit our locality for the purchase of cattle or goats or that he used to spend the nights in the house of Anima Pramanik due to his not being able to return to his native place." (18.) P.W. 2 Sabitri Ghosh was also suggested the same thing which she denied. She however admitted that the Deceased Anima at times used to call Mamata Ghosh, wife of the accused Haru Ghosh to her house. She was further suggested that this was not liked by Haru and he had also annoyed him as regards which P. W. 2 deposed to be ignorant. P. W. 4 namita Ghosh was suggested in her cross-examination that there was enmity between the deceased Anima Pramanik and the accused Haru Ghosh which she denied. P. W. 42 Mr. A. K. Sarkar the investigating officer in his cross-examination was asked on behalf of the defence whether any statement of the accused was recorded on 8th May, 2005 to which he answered in the affirmative. P.W. 42 thereafter was asked by the defence Counsel to narrate the statement made by the accused Haru which the P.W. 42 narrated in these words:- "the accused had stated before me that on 5.5.05 Anima Pramanick had called his wife Mamata Ghosh to her house through her son Kebol pramanick and also stated that the accused had found his wife mamata with Muslim paikar (cattle trader) in a compromising situation." (19.) FAR from suggesting to the P.W. 42 that no such statement was made by the accused, the P.W. 42 was further questioned in cross-examination on behalf of the defence as to whether the wife and daughters of the accused Haru Ghosh were interrogated by him. The answer of the P.W. 42 in this regard was as follows :- "I did not examine the wife or daughters of accused Haru Ghosh. The answer of the P.W. 42 in this regard was as follows :- "I did not examine the wife or daughters of accused Haru Ghosh. I did not record the statement of Mohon Ghosh, father of the accused haru Ghosh. " (20.) P.W. 42 was ultimately suggested that he had filed the charge-sheet against the accused person being carried away by emotion. (21.) THE victim Jeevan Krishna Chakraborty (P. W. 12) deposed that the accused Haru Ghosh used to sell illicit liquor in the locality of the village ramchaudrapur. Consequent to a complaint by the villagers the P.W. 12 as a panchayat member had asked the accused Haru to stop selling the illicit liquor to which he did not agree. Thereafter legal action was proposed to be taken against him which had angered the accused Haru. The accused haru in answer to question No. 14 during his examination under Section 313, Cr. P. C. has admitted that he used to sell country liquor to the labourers of the brick field which is situate in the village of Ramchandrapur itself. He however denied in answer to question No. 20 that anyone had asked him to stop selling the illicit liqour. P. W. 9 Bahadur was suggested that the accused haru was employed with the Mitra Brickfield in the year 2000 which he denied. P.W. 26 Prasanta Chakraborty, son of the victim Jeevan Krishna chakraborty (P. W. 12) corroborated the evidence of the P. W. 12 and added further that the accused Haru Ghosh had cut banana plants owned by buddhadev Pramanick the husband of the deceased Anima, Nemai Ghosh, balaram Ghosh, Jharu Ghosh and Tetul Ghosh. He went on to add that his father Jeevan Krishna Chakraborty had protested against such activity of the accused which had also angered the accused Haru. A salish, according to him, was held in the village on 28th March, 2005 over the cutting of the banana plants of the cultivators including Buddhadev Pramanick by the accused Haru Ghosh which ultimately led to lodging of a General Diary with the concerned police station which has been marked exhibit 29. The fact that such a diary was lodged has been admitted by the accused Haru in answer to question No. 15 during his examination under Section 313, cr. P. C. A large number of the witnesses incjuding P.Ws. The fact that such a diary was lodged has been admitted by the accused Haru in answer to question No. 15 during his examination under Section 313, cr. P. C. A large number of the witnesses incjuding P.Ws. 27, 28, 29, 31, 33 and 37 corroborated the evidence as regards cutting of the banana plants of the cultivators including Buddhadev Pramanick which led to futile a salish and ultimately the matter was brought to the notice of the police by lodging a diary. (22.) P.W. 26 Prasanta son of the victim Jeevan Krishna Chakraborty was suggested that the accused Haru Ghosh had campaigned for his father in the panchayat election on many a occasions. P. W. 12 Jeevan Krishna chakraborty was suggested that the accused Haru had complained to jeevan Krishna Chakraborty that L. Sarkar and Santa Ghosh had collected a sum of Rs. 10,000/-from Mitra Brickfield forcibly which was brought to the notice of the P.W. 12 but he did not, in the capacity of a Panchayat member, take any steps with regard thereto. The accused Haru Ghosh as such had joined the rival political group of CPI (M). The suggestions were however denied by Jeevan (P.W. 12). (23.) FROM the evidence discussed above the fact that the accused haru had a grudge against Jeevan can safely be inferred. The fact that haru was inimical towards Anima has been the case of the accused himself, which would appear from the suggestion given to the P. W. 4 noticed above. The grudge against Jeevan Krishna Chakraborty and the enmity with Anima may have furnished the accused Haru with a motive to commit this ghastly crime. We hasten to add that we have not taken into consideration the alleged statement of the accused Haru which was allegedly made to the p. W. 42 noticed above. The admissibility of that statement may not be open to any serious objection because the statement related to a distinct offence which was not the subject matter of investigation and therefore the bar under Section 162 of Cr. P. C would not be attracted. (24.) MR. Dastoor, learned Advocate appearing in support of the appeal submitted that it would appear from the evidence that the accused Haru had acted like a person possessed. P. C would not be attracted. (24.) MR. Dastoor, learned Advocate appearing in support of the appeal submitted that it would appear from the evidence that the accused Haru had acted like a person possessed. The accused knew that he was doing wrong but he does not appear to have been a normal person at the time when he committed the crime. He submitted that in a frenzy the accused committed the crime. He added that the accused has a history of mental ailment. He was treated by Dr. Patra a psychiatrist. Almost all the eyewitnesses namely P. Ws. 1,2,3,5,6,7,8,9,12,13,16 and 17 who are mostly his relations were suggested that the accused was a mental patient but all of them denied. The fact that the accused is a mental patient would be evident, according to Mr. Dastoor, from the manner in which he committed the crime. He submitted that after Subhankar had initially been rescued from the clutches of the accused Haru it was only natural that the accused haru should have been either beaten or overpowered and driven away from the place. The fact, that no such thing was done, goes to establish that the people present at the site ignored the accused. They did so obviously because they knew that the accused was a mental patient. (25.) HE further submitted that the incident may not have taken place at all if the P. W. 6 Shyamal Ghosh with a dao in his hand had not stopped at the place to watch what was going on there. Mr. Dastoor wanted us to hold that this was not a premeditated act. In a frenzy, due to his mental illness, the accused committed the series of crime. He therefore invited us to commute the sentence imposed by the learned Trial Judge to a life imprisonment and if necessary with a direction that he should be kept behind the bars for the whole of his life. According to him this case does not, in any event, fall within the category of the rarest of rare cases. (26.) MR. Goswami learned Public Prosecutor submitted that the plea of insanity sought to be advanced by Mr. Dastoor in the absence of any proof is nothing more than speculation. He submitted that the burden of proving incapacity of the accused to form the intent necessary to perpetrate the crime is on the accused himself. (26.) MR. Goswami learned Public Prosecutor submitted that the plea of insanity sought to be advanced by Mr. Dastoor in the absence of any proof is nothing more than speculation. He submitted that the burden of proving incapacity of the accused to form the intent necessary to perpetrate the crime is on the accused himself. No such attempt was made and therefore this Court cannot accept the plea nor can this Court on that basis commute the sentence. He. in support of his submission relied on a judgment of the Apex Court in the case of Bablu @ Mubarik Hussain v. State of rajasthan reported in 2007 Cal LJ 1160. He relied on paragraph 37 of the judgment wherein the following view was expressed. "the defence of drunkenness can be availed of only when intoxication produces such a condition as the accused loses the requisite intention for the offence. The onus of proof about reason of intoxication due to which the accused had become incapable of having particular knowledge in forming the particular intention is on the accused. Basically, three propositions as regards the scope and ambit of section 85, IPC are as follows :-(i) The insanity whether produced by drunkenness or otherwise is a defence to the crime charged; (ii) Evidence of drunkenness which renders the accused incapable of forming the specific intent essential to constitute the crime should be taken into account with the other facts proved in order to determine whether or not tie had this intent; and (Hi) The evidence of drunkenness falling short of a proved incapacity in the accused to form the intent necessary to constitute the crime and merely establishing that his mind is affected by drink so that he more readily give to some violent passion, does not rebut the presumption that a man intends the natural consequences of his acts." (27.) MR. Dastoor reiterated that the conduct of the people present at the locale after the child had been rescued from initial assault would go to show that they had treated the accused Haru as an insane person and that is why they did not take any step either to overpower him or to drive him away from the place. He added that it was a fortuitous circumstance that the P. W. 6 at that fateful moment had stopped at the house of Buddhadev pramanick to watch the tamasha. He added that it was a fortuitous circumstance that the P. W. 6 at that fateful moment had stopped at the house of Buddhadev pramanick to watch the tamasha. He had a naked dao in his hand which facilitated the commission of the crime. If the P.W. 6 Shyamal had not been there the crime would not have been committed. He therefore reiterated his submission that the death sentence should be commuted to life imprisonment. (28.) WE have considered the rival submissions. It is not in dispute that no evidence whatsoever as regards the alleged insanity of the accused haru was adduced. It is also difficult to accept the submission that the accused had no intention to commit the crime. From the case suggested to the P. W. 4, noticed above, it appears that there was enmity between the accused Haru and the deceased Anima. P. W. 31 Buddhadev, husband of the deceased Anima and father of the deceased Subhankar @kebol deposed that out of fear he maintained good relationship with the accused haru despite the fact that he had destroyed the banana plantation of the former about two months prior to the date of incident which again was a sequel of the fact that the P. W. 31 had demanded payment of the price of milk worth Rs. 1,700/-sold and delivered to Sreedam Ghosh,elder brother of the accused Haru Ghosh, which had offended both Sreedam and Haru. When a salish was held the accused did not appear. In the circumstances a written complaint was made to the police station which has been exhibited in the trial. The accused had threatened to beat up Buddhadev or to force him to leave his house. The accused used to run the business of illicit liquor by the side of the house of Buddhadev Pramanick (P.W. 31). (29.) AN important admission was elicited from the P.W. 31 in his cross-examination that on the date of the occurrence the accused Haru had taken food in the house of the former (P. W. 31). It appears from the evidence of the P. W. 31 that at the time when the incident happened, he was not at home. He had gone to milk a cow at some distance. When he was returning home he was told by the villagers that his wife and son were lying dead by the side of the tubewell in his house. He had gone to milk a cow at some distance. When he was returning home he was told by the villagers that his wife and son were lying dead by the side of the tubewell in his house. (30.) THE fact that the accused Haru took food in the house of the victims goes to establish that he entered the house in the guise of a friend. We already have noticed that the strangulation of the child Subhaukar @ kebol took place in the bedroom of the deceased Anima. Out of fear the accused was entertained to ensure peaceful survival. The accused however grabbed the opportunity, afforded by the absence of Buddhadev, to throttle his minor child Subhankar. When Subhankars mother raised alarm and the neighbours rushed in Subhankar was rescued but he already was bleeding from his mouth. The child was taken to the tubewell for the purpose of pouring water on his head. Mr. Dastoor submits that it is unnatural that the neighbours, who had collected, did not take any step to beat up the accused Haru or to drive him away from the place which was an unnatural conduct according to him. We are unable to accept this theory for the simple reason that the accused Haru was a terror in the locality. We have evidence before us which we already have discussed above to show that when Adhir (P.W. 8) had intervened and rescued the child the accused Haru sought to retaliate. Adhir (P.W. 8) somehow freed himself. The persons present at the place of the occurrence could not muster the necessary courage to inflict any violence upon him. They were too happy to have rescued the child and it was only natural that steps would first be taken to ensure the survival of the victim of strangulation who was already, bleeding from his mouth. Hardly was there any time lag. While water was being poured on the head of the child, P. W. 6 Shyamal with a dao in his hand was watching the incident. The accused snatched the dao from the P. W. 6 Shyamal and indiscriminately assaulted the mother and the son. We are unable to accept the submission that the accused had no intention of killing either the mother or the son. The intention of killing is amply proved by the fact that the child was almost strangulated to death. The accused snatched the dao from the P. W. 6 Shyamal and indiscriminately assaulted the mother and the son. We are unable to accept the submission that the accused had no intention of killing either the mother or the son. The intention of killing is amply proved by the fact that the child was almost strangulated to death. When the child was strangulated by him he cannot be considered to have been doing so in zest. The child had already started bleeding from his mouth. A person is presumed to intend the natural and probable consequence of his act. The first attempt was foiled by the intervention of the neighbours, evidence as regards which, we already have discussed. If he did not have the requisite intention of killing the mother and the son he would not have snatched the dao from the P. W. 6 for no one does anything without any purpose. We already have noticed from the evidence of the P. W. 1 that the first blow with the dao was inflicted on anima. If the accused had intended to kill only the child, the blow would have been directed to him. The fact that the mother was attacked with the dao first goes to prove that the accused intended to kill both the mother and the son. Nay he intended to kill many more people. He rushed to the house of Jeevan Krishna Chakraborty (P. W. 12) and attacked the helpless, unarmed and infirm old person. When the sons of Jeevan and the neighbour uttam, hearing the hue and cry, rushed in, the accused chased the interveners with the dao. He thereafter entered the house of Nilmani Ghosh wielding the dao. The terror let loose by the accused would be somewhat clearer from the information given by the P. W. 1 to the police seeking assistance at once discussed above. We have no reason to think that the accused had entered the house of Nilmani Ghosh to take shelter. If that were so he would not have advanced at Nilmani to attack him which led him to enter into his room and bolt himself from inside. In order to overpower and unarm the accused Haru, P. W. 7 Sakhhi, P. W. 9 Bahadur and Gautam had to inflict injuries on the accused. If that were so he would not have advanced at Nilmani to attack him which led him to enter into his room and bolt himself from inside. In order to overpower and unarm the accused Haru, P. W. 7 Sakhhi, P. W. 9 Bahadur and Gautam had to inflict injuries on the accused. P. W. 9 Bahadur deposed that "haru ghosh raised his daa and threatened me that he would cut me down like the three other persons he had already killed". This aspect of the matter has been discussed in greater detail in the earlier part of this judgment. We therefore are unable to accept the plea advanced by Mr. Dastoor. (31.) IT is also not in dispute that the accused Haru is already a convict and has been sentenced to suffer life imprisonment with regard to murder of one Bhagirath Ghosh. The judgment delivered in that case holding the accused Haru Ghosh, amongst others, guilty of the murder of Bhagirath ghosh is exhibit 38 in the present case. An appeal from the aforesaid judgment and order is pending in this Court. This Court, it appears, had enlarged the accused Haru Ghosh on bail. While he was on bail he committed the present crime. The accused in answer to question No. 55 admitted that he was convicted for killing Bhagirath Ghosh, the husband of the P. W. 40 with a sharp weapon and that a life sentence was given to him in Sessions Case No. 8 (12) of 2000 regarding the occurrence dated 30th april, 2002. (32.) IT appears that on 20th March, 2006 examination of the accused under Section 313, Cr. P. C. was completed. In answer to question No. 59 the accused stated that he would adduce evidence in his defence. The matter was kept for evidence on behalf of the defence on 3rd April, 2006. An adjournment at the instance of the defence was granted till 13th April, 2006. On 13th April, 2006 it was submitted to the Court on behalf of the defence that no evidence in support of the defence was intended to be adduced. Accordingly the matter was kept for argument. On 19th April, 2006 a document was sought to be filed which was opposed by the prosecution. On 13th April, 2006 it was submitted to the Court on behalf of the defence that no evidence in support of the defence was intended to be adduced. Accordingly the matter was kept for argument. On 19th April, 2006 a document was sought to be filed which was opposed by the prosecution. The document appears to have been kept on record but no submission with regard thereto was advanced either before the learned trial Court or before this Court. In the absence of any evidence before us, we are inable to accept the plea that Haru was a mental patient. The case suggested to the witnesses of the prosecution noticed above is also irreconcilable with the proposition that the accused Haru was a mental patient. Therefore, the only question which survives for our decision is whether the death sentence awarded by the learned trial Court should be confirmed. The learned trial Court has made a balance sheel of the mitigating and aggravating circumstances which is as follows :-"on considering the fact situation of this case the following conspicuous features of the offence have been found :-1) The convict lacks basic humanness. Having his own children at home he did not hesitate to kill Shuvonkar Pramanick who was only 12 years of age. 2) The convict has committed cold blooded murder of helpless and defenceless woman and child in broad day light, shocking the conscience of the community. 3) The murder of Anima Pramanick and Shuvonkar Pramanick @ kebol were executed in most revolting and cruel manner by chopping anima Pramanick on her neck, severing her third and fourth vertebra, chopping on her face, extending from outer canthus of left eye extending to the back of the neck through the pinna of left ear and chopping on different parts of her body with a dao including left thigh, left knee joint and lower part of left femur. Shuvonkar was murdered in an equally brutal manner and he was chopped with a dao on his scalp, face. His nasal bones were cut and eye balls punctured. Apart from several other injuries on different parts of his body, the right hand of Shuvonkar was hacked and separated from wrist joint. This enormity of the crime perpetrated by the convict without any provocation from the helpless woman and child and any attempt of retaliation from their part. His nasal bones were cut and eye balls punctured. Apart from several other injuries on different parts of his body, the right hand of Shuvonkar was hacked and separated from wrist joint. This enormity of the crime perpetrated by the convict without any provocation from the helpless woman and child and any attempt of retaliation from their part. 4) The convict by committing such gruesome murder of woman and child has aroused intense indignation of the community which a court of law cannot lose sight of. 5) The murder of Anima and kebol were committed by the convict with a mean motive of reprisal against Buddhadev Pramanick the husband and father of Anima and kebol respectively for the simple reason that he alongwith other cultivators had lodged a G.D. against the accused the causing damage to their cultivation a few days before the occurrence. 6) The criminal propensities of the accused in committing offence in ruthless manner is revealed from his involvement in the murder of bhagirath Ghosh wherein he was convicted by a court of sessions. The convict on his release on bail committed murder of Anima pramanick and Kebol Pramanick. 7) There is no mitigating circumstances in favour of the accused to extenuate the offence committed. 8) The convict has his parents, children and wife but their influence failed to curb his criminal propensity. 9) The convict is still not repentant for the crime committed by him and pleaded his innocence in the same manner to evade the consequence of his brutality. 10) In course of trial defence suggested to the prosecution witnesses that the accused had suffered from insanity some years ago but no evidence has been adduced in support of their plea. 11) Another mitigating circumstances in this case is that convict has two minor daughters aged parents and wife at home. 12) The accused committed murder of a young woman aged 30 years and her minor son aged 12 years bereaving the family members of the deceased having no bearing in mind that he himself has a wife at home and minor children of the age of Shuvonkar whom he killed. Having considered the balance sheet of aggravating and mitigating circumstance and taking an overall view of this case I find that the aggravating circumstance against the convict outweigh the mitigating factors. Having considered the balance sheet of aggravating and mitigating circumstance and taking an overall view of this case I find that the aggravating circumstance against the convict outweigh the mitigating factors. In such a situation I do not find any justifying reason to treat the convict leniently in imposing sentence against him. His character and bent of mind does not appear amenable to reforms. Leniency is a grace and it should be exhibited in appropriate case where their remains of speck of humanness to be inculcated and grown but when a person is bereft of such residue, expression of sympathy and leniency to him undermines the public confidence. In sevaka Perumal v. State of Tamil Nadu, (1991)3 SCC 471 Honble apex Court cautioned : "undue sympathy to impose inadequate sentence would do more harm to the Justice delivery system to under mine the public confidence in the efficacy of law and society could not long endure under serious threat if the courts did not protect the injured, the injured would then resort to private vengeance. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. Under such circumstances I hold that this is an exemplary case which should be treated as the "rarest of rare case". In my consideration, imposition of life sentence against the convict for his offence u/s 302 of I. P. C. would be absolutely inadequate. The condign punishment for the twin murder is a death sentence. The manner of commission and nature of crime constitute the special reason contemplated under Section 354 (3) of Cr. P. C. for imposing a death sentence. I find it just and proper to impose the extreme punishment of death sentence against convict Haru Ghosh for the offence punishable under Section 302 of I. P. C. " (33.) THE balance sheet of the mitigating and aggravating circumstances made by the learned trial Court for the purpose of awarding death sentence to the accused conforms to the broad guidelines laid down in paragraph 37 of the judgement in the case of Machhi Singh and Ors. v. State of Punjab reported in 1983 (3) SCC 470 . v. State of Punjab reported in 1983 (3) SCC 470 . (34.) ONE of the reasons which justifies award of a death sentence is that the Court of Law, holding position of parens patraie seeks to ensure safety and security of the citizens. Court inflicts punishment to the offender on behalf of the society. It is also in exercise of the right of self-defence that the society inflicts a death sentence through the Courts of Law. We are fortified in our view from the following opinion expressed in paragraph 164 by the Apex Court in the case of Bachan Singh v. State of Punjab reported in 1980 (2) SCC 684 . "while considering the question of sentence to be imposed for the offence of murder under section 302, Penal Code, the court must have regard to every relevant circumstance relating to the crime as well as the criminal. If the court finds, but not otherwise, that the offence is of an exceptionally depraved and heinous character and constitutes, on account of its design and the manner of its execution a source of grave danger to the society at large, the court may impose the death sentence. " the society, in our considered opinion, will not be safe if a criminal like accused is not handed down the capital punishment. He by his conduct and repeated offences has demonstrated that he is not amenable to correction. Therefore he has to be prevented which can only be achieved by his death which would also serve the public purpose of deterring the like minded criminals who may be contemplating to commit such one or other crimes. (35.) IN the case of Ramanup Singh and Ors v. State of Bihar reported in 2002 (6) SCC 686 the Apex Court laid down some more relevant tests : Is the accused a menace to the society ? Is there any chance of reformation or rehabilitation of the accused ? (36.) WE are of the opinion that the evidence does not suggest that there is any chance of rehabilitation or reform of the appellant before us. We also are of the view that the appellant is menace to the society. In our opinion, this case clearly comes within the category of rarest of rare case and there will be gross travesty of justice if the death sentence is not affirmed. We also are of the view that the appellant is menace to the society. In our opinion, this case clearly comes within the category of rarest of rare case and there will be gross travesty of justice if the death sentence is not affirmed. (37.) WE therefore have no option but to confirm the death sentence and to uphold the judgment passed by the learned trial Court. The appeal is as such dismissed.