“REPORTABLE”

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1173_OF 2008

Haru Ghosh …. Appellant

Versus

State of West Bengal …. Respondent

J U D G M E N T

V.S. SIRPURKAR, J.

1. Appellant  herein  Haru  Ghosh  has  come up  by way of  this  appeal,  challenging  the  

judgment of the High Court, whereby, the High Court confirmed the verdict of conviction, as also  

the death sentence awarded by the Sessions Judge.  Appellant was tried for having committed  

murder of one Anima Pramanik, aged about 30 years and her son Subhankar Pramanik @ Kebal,  

aged about 12 years.  He was also tried for the offence under Section 307-326 of the Indian Penal  

Code (hereinafter referred to as “IPC” for short)  for attempting to murder one Jeevan Krishna  

Chakraborty, aged about 60 years.

2. The prosecution case was that on 7.5.2005, at about 11.15 hours, a telephonic message  

was received by N.C. Mondal (PW-37), an Assistant Sub-Inspector of Nawadeep Police Station,  

informing that between 10.45 Hrs. and 11.10 hrs. on that day, one Haru Ghosh S/o Mohan Ghosh,  

staying at Ramchandrapur Ghoshpara assaulted three persons of the said village by a sharp cutting  

dao and also tried to assault others and for that, the police help was immediately needed.  The  

message was recorded in the General Diary vide Entry No. 300.  One Shri Amitava Ghosh (PW-

39), Inspector-in-Charge, reached the spot immediately at about 11.25 hours.  The said message  

was sent by Samir Ghosh (PW-1), who narrated the incident to them.  The bodies of a female and a  

male child were lying near the tubewell of the house of the victims.  On this basis, the further

investigation was taken up.  It came out from the complaint of the complainant Samir Ghosh (PW-

1) that  he had heard some cries  from the  house  of  the  deceased  and rushed  only to  find the  

appellant/accused strangulating Subhankar  Pramanik.   On the  intervention  of  the  complainant,  

Subhankar was released from the clutches of Haru Ghosh and he was bleeding, therefore, Anima  

(mother of Subhankar) took him to the nearby tubewell and was pouring water on his face.  It  

further came out that while she was pouring water, at that time one Shyamal Ghosh, a neighbour,  

was watching the incident with a dao in his hand.  Haru snatched the dao from Shyamal and started  

assaulting Subhankar and Anima with that dao, as a result of which both of them collapsed on the  

ground with severe bleeding injuries.  Thereafter, Haru ran away with the dao and only after few  

minutes later, the informant-complainant Samir Ghosh (PW-1) came to know that Haru had also  

gone to Jeevan Krishna Chakraborty’s house and hacked him and also to the house of one or two  

others and had injured them with the aforesaid  dao.  Prosecution collected the statements of the  

witnesses, who were Samir Ghosh (PW-1), Sabitri Ghosh (PW-2), Adhir (PW-8) and wife of Adhir  

namely Bandana (PW-3).  It came out from the statements that these persons had intervened when  

Subhankar was assaulted by Haru and had rescued him.  The statement of one Atasi Ghosh (PW-5)  

and Shyamal Ghosh (PW-6) was also collected.  One Namita Ghosh (PW-4), a neighbour, was also  

questioned  by the  investigating  agency,  as  also  Sikha  (PW-10),  who  was  none  else,  but  the  

daughter-in-law of Jeevan Krishna Chakraborty, who was a member of Gram Panchayat.

3. It transpired further that Jeevan Krishna Chakraborty though was assaulted severally; his  

statement also came to be recorded.  The statements of some others present in the house of Jeevan  

Krishna Chakraborty were also collected by the prosecution.  Thus the prosecution collected the  

statements of about 36 witnesses.  On this basis, the charge sheet was filed.

4. It also turned out during the investigation that Haru Ghosh was already undergoing the  

sentence of life imprisonment in one other matter and he had come back from the jail on bail.  It  

further transpired that the motive for this dastardly act on the part of the appellant/accused was that  

the accused used to sell illicit liquor and all persons in the neighbourhood including the husband of

the deceased Anima used to ask him not to sell illicit liquor in the locality.  It also turned out that  

the appellant/accused had cut down about 75 banana trees and there was a report made, on account  

of which, it came out that the appellant/accused was a bully in the locality.  On this basis, the  

investigating agency filed a charge sheet against the appellant/accused.   The appellant/accused  

abjured the guilt.  His plea was that of false implication.

5. In support of the prosecution, as many as 36 witnesses came to be examined, the main  

witnesses being Samir Ghosh (PW-1),  Sabitri  Ghosh (PW-2), Namita Ghosh (PW-4), Shyamal  

Ghosh (PW-6), Adhir Ghosh (PW-8) and his wife Bandana Ghosh (PW-3) and Atasi Ghosh (PW-

5).  On the first part of the incident, i.e., about the assault by the appellant/accused on Anima and  

Subhankar, both of whom died on the spot, and as regards the second part, i.e., about the assault of  

Jeevan Krishna Chakraborty, he himself was examined as PW-12.  The supporting witnesses to the  

second assault were Sikha Chakraborty (PW-10), Jayanta Chakraborty (PW-29), Uttam Saha (PW-

30), Nilmoni Ghosh (PW-13), Susanta Chakraborty S/o Jeevan Krishna Chakraborty (PW-27) etc.  

There are some other witnesses who were examined to corroborate these witnesses, who were the  

eye witnesses.  The prosecution also led the evidence of Dr. Kanchan Kumar Sarkar (PW-34),  

Sakshi  Ghosh (PW-7), Bahadur Ghosh (PW-9), Biswajit  Ghosh (PW-17) and Dr. Jahnunandan  

Misra.  The evidence of police witnesses was also led and after all the evidence, the Sessions Judge  

came to the conclusion that it was proved beyond reasonable doubt by the prosecution that the  

appellant/accused  had  committed  the  murder  of  Anima and  Subhankar  and  also  attempted  to  

murder Jeevan Krishna Chakraborty.  The appellant/accused was sentenced to death on account of  

the murder of Anima and Subhankar and was also convicted to suffer the rigorous imprisonment  

for seven years and payment of Rs. 5,000/-, and in default, to suffer six months’ imprisonment on  

account of offence punishable under Section 307, IPC.  Strangely enough, he was also sentenced to  

suffer rigorous imprisonment for 5 years and to pay Rs.5,000/- and in default, to suffer further  

rigorous imprisonment for 3 months for the offence punishable under Section 326, IPC.  This was  

confirmed by the High Court, necessitating the present appeal.  

6. Shri Mata Prasad Singh, the Amicus Curiae appointed by this Court took us through the  

evidence of all the witnesses.  All that we can say is that there is voluminous evidence in respect of  

both the incidents, namely, the murder of Anima and Subhankar and the attempt to commit murder  

of Jeevan Krishna Chakraborty.  The first group of witnesses Samir Ghosh (PW-1), Sabitri Ghosh  

(PW-2), Adhir Ghosh (PW-8), Bandana Ghosh (PW-3), Namita Ghosh (PW-4), Atasi Ghosh (PW-

5)  and  Shyamal  Ghosh  (PW-6)  were  all  neighbouring  witnesses.   They have  all  graphically  

described the attack on Anima and Subhankar.  They were the witnesses who actually went on the  

spot to save Subhankar who was being strangulated by the appellant/accused.  They have all, in one  

tone,  described how the  appellant/accused tried  to  strangulate  Subhankar  and how Anima got  

injured because of that.  They have also described that thereafter, Subhankar was bleeding and was  

taken near the tube-well by Anima who was trying to wash his mouth and at that time Haru, the  

present appellant, snatched  dao from the hand of Shyamal Ghosh and assaulted them.  Shyamal  

Ghosh (PW-6) has in no uncertain terms supported the prosecution theory.  It was he from whose  

hands the murder weapon was snatched.  Sakshi Ghosh (PW-7) was also attracted by the hue and  

cry and had also seen the whole incident.  Adhir Ghosh (PW-8) is husband of Bandana Ghosh  

whose evidence we have already referred to.  He has also seen and graphically described the whole  

incident.   All  these  witnesses  have  graphically  spoken  about  the  murderous  attack  by  the  

appellant/accused on Subhankar and Anima.  We have very carefully seen the cross-examination  

and nothing has come from these witnesses which would render the evidence suspicious in any  

manner.   

7. In that light when we see the evidence of Dr. Rathindra Nath Haldar (PW-18), who  

performed the post-mortem on the body of  Anima and Subhankar,  we are  convinced that  the  

appellant/accused had no other intention but to commit murder.  Anima had suffered as many as  

six injuries referable to the sharp cutting weapon on the most vital parts of her body like neck.  As  

many as four injuries were found to be on her neck resulting in cutting of vertebra, the fracture of  

mandible bone etc.  The other two injuries were on her thigh and left knee joint.  In comparison,  

Subhankar had suffered 10 injuries on the equally vital parts of the body like head, right eye, face,

shoulders, and right arm by way of injury No. 10.  His wrist of the right hand was separated from  

the hand completely.  All this leaves us with no doubt that the appellant/accused was rightly found  

guilty of murdering these two unfortunate, helpless and defenceless persons apparently for no fault  

on their part.

8. Shri  Mata Prasad Singh could not  find any fault  with  the evidence to say that  this  

appellant/accused  was  on  inimical  terms  with  the  witnesses  and,  therefore,  the  witnesses  had  

falsely implicated him.  The argument is clearly unsustainable as there does not seem to be any  

enmity brought out on the cross-examination of these witnesses.   Therefore, even if there was  

enmity between the parties then that would bring a clear cut evidence of the motive.

9. The  appellant/accused  did  not  stop  after  hacking  the  two  unfortunate  persons  but  

proceeded in the direction of the house of Jeevan Krishna Chakraborty (PW-12).  The evidence of  

witnesses Sikha Chakraborty (PW-10) and Jeevan Krishan Chakraborty (PW-12) which evidence  

was corroborated by other witnesses like Prasanta (PW- 26), Nilmoni Ghosh (PW-13), Jayanta  

Chakraborty (PW-29), Uttam Saha (PW-30), Biswajit Ghosh (PW-17) and Susanta Chakraborty  

(PW-27) clearly brings out that this appellant/accused, immediately after murdering Anima and  

Subhankar, assaulted Jeevan Krishna Chakraborty.  We have also seen the evidence of Jeevan  

Krishna Chakraborty along with the medical evidence regarding the injuries and we have no doubt  

about the correctness of the findings reached by the Sessions Judge and the High Court.   The  

assault on Jeevan Krishna Chakraborty was so severe that he lost one of his fingers, being right  

hand index finger.  We need not go to the other circumstantial evidence like the blood stained  

clothes etc. in view of this direct evidence of the eye witnesses and in our opinion, the Trial and the  

Appellate Court have correctly come to the conclusion that the accused is guilty for the offence  

punishable under Section 307, IPC.  In fact, on that count it was not necessary for the Trial Court  

to additionally convict him for the offence under Section 326, IPC.  That part dealing with the  

conviction and sentence of the appellant/accused under Section 326, IPC would have to be set  

aside and is set aside.

10. This, however, leaves us with the question as to whether the appellant/accused should  

be  sent  to  gallows.   It  was  tried  to  be  argued by Shri  Tara  Chand  Sharma on  behalf  of  the  

Government of West Bengal that this was a rarest of rare case.  Shri Sharma pointed out that this  

was a murder of a defenceless lady and a young child of barely 12 years of age.  It was further  

pointed out that the appellant/accused had shown extreme depravity of his mind in inflicting the  

dao blows on the defenceless victims and the blows were given with such severity that both the  

deceased  persons  lost  their  lives  on  the  spot.   Subhankar’s  part  of  the  hand  was  completely  

separated from the rest of the body.  It was pointed out that the appellant/accused did not wait there  

and immediately thereafter rushed to Jeevan Krishna Chakraborty and assaulted him with severity.  

It was further pointed out that the appellant/accused was already undergoing conviction and jail  

sentence in an earlier matter and was released on bail by the High Court and yet he committed all  

these acts showing extreme depravity.  Learned counsel further urged that it will be dangerous to  

allow the appellant/accused to live in the society.  He was described by the learned counsel as a  

bully who used to sell illicit liquor and the appellant/accused had also admitted that he used to sell  

liquor.  The Sessions Judge, as well as, the High Court have accepted all these reasons and have  

held the case to be rarest of rare case.

11. However, Shri Mata Prasad Singh urged that the appellant/accused had acted only on  

the spur of the moment and that merely because there were two murders committed by him that by  

itself does not become a rarest of rare case.  Learned counsel for the defence further urged that the  

appellant/accused had two young children and there was nobody to support his family after him  

and that also is one of the considerations.

12. The test of rarest of rare case was laid down by this Court for the first time in the case of  

Bachan  Singh  v.  State  of  Punjab  reported  in  1980 (2)  SCC 684.   Thereafter  the  same was  

reiterated in Machhi Singh & Ors. Vs. State of Punjab reported in 1983 (3) SCC 470.  The test  

laid down adopted the following five considerations:-

“(1) When the murder is committed in an extremely brutal, grotesque, diabolical,  revolting  or  dastardly  manner  so  as  to  arouse  intense  and  extreme

indignation of the community.

(2) When the murder is committed for a motive which evinces total depravity  and meanness; e.g. murder by hired assassin for money or reward; or cold- blooded murder for gains of a persons vis-a vis whom the murderer is in  dominating position or in a position of trust; or murder is committed in the  course of betrayal of the motherland.

(3) When murder of a member of a Scheduled Caste or minority community etc.  is  committed not for personal reasons but in circumstances which arouse  social  wrath;  or  in  cases  of  ‘bride  burning’  or  ‘dowry deaths’  or  when  murder is committed in order to remarry for the sake of extracting dowry  once again or to marry another woman on account of infactuation.

(4) When the crime is enormous in proportion.  For instance, when multiple  murders, say of all or almost all the members of a family or a large number  of persons of a particular caste, community or locality are committed.

(5) When the victim of murder is an innocent child, or a helpless woman or old  or infirm person or a person vis-à-vis whom the murderer is in a dominating  position,  or  a  public  figure  generally  loved  and  respected  by  the  community.”

Thereafter, however, there are several cases in which this Court considered the question  

of the rarest of rare case, each time weighing the factual situation obtained in the matter.  There can  

be no dispute that there cannot be a straightjacket formula depending on the numbers of murders  

committed or the manner in which the murder was committed or the fact that the appellant/accused  

was already undergoing the sentence of rigorous imprisonment for life.  We must hasten to add in  

this case that the appeal of the appellant/accused was already pending in the Calcutta High court  

against his previous conviction under Section 382, IPC.  The findings of the rarest of rare case  

would  have  to  be  judged  in  the  light  of  the  circumstances  brought  about  and proved by the  

prosecution.  This Court in Om Prakash v. State of Haryana reported in 1999 (3) SCC 19, while  

dealing with the accused who had committed seven murders, observed as under:

“17. Considering the aforesaid background of the matter, the question would be  whether the case of the appellant could be one of the “rarest of the rare”  cases so that death sentence is required to be imposed.  In our view, even  though this is a gruesome act on the part of the appellant, yet it is a result of  human  mind  going astray because  of  constant  harassment  of  the  family  members of the appellant as narrated above.  It could be termed as a case of  retribution or act for taking revenge.  No doubt, it would not be a justifiable  act at all, but the accused was feeling morally justifiable on his part.  Hence,  it would be difficult to term it as the “rarest of the rare” cases.  Further this

is not a crime committed because of lust for wealth or women, that is to say,  murders are neither for money such as extortion, dacoity or robbery; nor  even for lust and rape; it is not an act of anti-social element kidnapping and  trafficking in minor girls or of an anti-social element dealing in dangerous  drugs which affects the entire moral fibre of the society and kills number of  persons; nor is it crime committed for power or political ambitions or part of  organized criminal activities.  It is a crime committed by the accused who  had a cause to feel aggrieved for injustice meted out to his family members  at the hands of the family of the other party who according to him were  strong enough physically as well as economically and having influence with  the  authority  which  was  required  to  protect  him  and  his  family.   The  bitterness increased to a boiling point and because of the agony suffered by  him and his family members at  the hands of the other party and for not  getting protection from the police officers concerned or total inaction despite  repeated written prayers goaded or compelled the accused to take law in his  own hands which culminated in gruesome murders; may be that his mind  got  derailed  of  the  track  and  went  astray or  beyond control  because  of  extreme  mental  disturbances  for  the  constant  harassment  and  disputes.  Further considering the facts and circumstances, it cannot be said that he  would be menace to the society; there is no reason to believe that he cannot  be reformed or rehabilitate and that he is likely to continue criminal acts of  violence as would constitute as continuing threat to the society.  He was  working in BSF as a disciplined member of the armed forces aged about 23  at the relevant time, having no criminal antecedents.”

The question of rarest of rare case or the justification for awarding the death sentence was lastly  

considered by this Court in Santosh Kumar Satishbhushan Bariya v. State of Maharashtra [JT   

2009 7 SC 248] by Hon’ble Sinha, J. (as His Lordship then was), and in Swamy Shraddananda   

@ Murly Manohar Mishra v. State of Karnataka [AIR 2008 SC 3040] by Hon’ble Aftab Alam,   

J.

13. In case of Swamy Shraddananda @ Murly Manohar Mishra v. State of Karnataka   

(cited supra),  which is a locus classicus, speaking for the Three Judges’ Bench of this Court,  

Hon’ble Aftab Alam, J. has analysed practically the whole case law on this issue in para 29.  The  

Court observed that in case of Machhi Singh & Ors. v.State of Punjab (cited supra), the scope  

for imposing death penalty, which was greatly restricted in the case of Bachan Singh v. State of  

Punjab (cited supra), was enlarged.  The test laid down in the case of Bachan Singh v. State of  

Punjab  (cited  supra)  was  tested  on  the  backdrop  of  the  language  of  Section  354(3)  of  the  

Criminal Procedure Code.  It was observed in the earlier paragraph 26 and we respectfully agree  

with the expression that :-

“No  two  cases  are  exactly  identical.   There  are  countless  permutations  and  combinations which are beyond the anticipatory capacity of the human calculus  and that the standardization of the sentencing process tends to sacrifice justice at  the altar of blind uniformity.”

The Court also observed that in case of Machhi Singh & Ors. v. State of Punjab (cited  

supra), the standardization and classification of cases that the two earlier Constitution Benches had  

resolutely refrained from doing, finally came to be sealed.  In Para 28, the Court observed:-

“……..A careful reading of the Machhi Singh categories will make it clear that the  classification  was  made  looking  at  murder  mainly  as  an  act  of  maladjusted  individual criminal(s)……..

Then the Court went on to consider the post  Machhi Singh  situation and commented  

that:-

“……..Then the country was relatively free from organized and professional crime.  Abduction  for ransom and gang rape and murders committed in course of those offences were yet to become  a menace for the society compelling the legislature to create special slots for those offences in the  penal code.  At the time of Machhi Singh, Delhi had not witnessed the infamous Sikh carnage.  There was no attack on the country’s Parliament.  There were no bombs planted by terrorists  killing  completely  innocent  people,  men,  women  and  children  in  dozens  with  sickening  frequency.  There were no private armies. There were no mafias cornering huge Government  contracts  purely by muscle  power.   There were no reports  of  killings of  social  activists  and  “whistle blowers”.  There were no reports of custodial deaths and rape and fake encounters by  Police or even by armed forces………..”

The Court then observed:-

“……….These developments would unquestionably find a more pronounced reflection in any  classification if one were to be made to day……….”

The Court, ultimately, observed that:-

“………. even though the categories framed in  Machhi Singh  provide very useful guidelines,  nonetheless those cannot be taken as inflexible, absolute or immutable and that there would be  scope for flexibility…….”

14. In Para 29, the Court noted the various expressions like “special reasons” in the context  

of the provisions of Section 354(3), “exceptional reasons”, “special reasons” etc.  Later on, the  

Court also noted some contrary views on death penalty relying on the decision in Alok Nath Dutta   

Vs.  State  of  West  Bengal  reported  in  2006 (10)  Suppl.  SCR 662.   The  observations  in  that  

judgment  were  also  quoted.   After  taking resume of  the  case  law and after  deciding that  the

accused in that case should not be hanged, the Court observed in Para 66 as under:-

“The  matter  may be  looked  at  from a  slightly different  angle.   The  issue  of  sentencing has two aspects.  A sentence may be excessive and unduly harsh or it  may be highly disproportionately inadequate.  When an appellant comes to this  Court carrying a death sentence awarded by the Trial Court and confirmed by the  High Court, this Court may find, as in the present appeal, that the case just falls  short  of  the  rarest  of  the  rare  category  and  may  feel  somewhat  reluctant  in  endorsing the death sentence.  But at the same time, having regard to the nature of  the crime, the court may strongly feel that a sentence of life imprisonment that  subject to remission normally works out to a term of 14 years would be grossly  disproportionate and inadequate.  What then the Court should do?  If the Court’s  option is limited only to two punishments, one a sentence of imprisonment, for all  intents and purposes, of not more than 14 years and the other death, the Court may  feel tempted and find itself nudged into endorsing the death penalty. Such a course  would indeed be disastrous.  A far more just, reasonable and proper course would  be to expand the options  and to take over  what,  as  a  matter  of  fact,  lawfully  belongs  to  the  court,  i.e,  the  vast  hiatus  between 14 years’  imprisonment  and  death.   It  needs  to  be  emphasized  that  the  Court  would  take  recourse  to  the  expanded option primarily because in the facts of the case, the sentence of 14  years imprisonment would amount to no punishment at all.”  

The Court,  ultimately, in that case, awarded the sentence for life imprisonment,  but  

issued a further direction that convict must not be released from the prison for the rest of his life or  

for the actual term as specified in the Order, as the case may be.

15. In  another  locus  classicus  Santosh  Kumar  Satishbhushan  Bariyar  Vs.  State  of   

Maharashtra [JT 2009 (7) SC 248], Hon’ble Sinha, J. observed:-

“When the court is faced with a capital sentencing case, a comparative analysis of the case before  it with other purportedly similar cases would be in the fitness of the scheme of the Constitution.  Comparison will  presuppose  an identification  of a pool  of  equivalently circumstanced capital  defendants. The gravity, nature and motive relating to crime will play a role in this analysis.”

It was further observed:-

“Next step would be to deal with the subjectivity involved in capital cases. The imprecision of the  identification of aggravating and mitigating circumstances has to be minimized. It is to be noted  that the mandate of equality clause applies to the sentencing process rather than the outcome. The  comparative review must be undertaken not to channel the sentencing discretion available to the  courts but to bring in consistency in identification of various relevant circumstances.”

Lastly, the Learned Judge observed:-

“The  weight  which  is  accorded  by  the  court  to  particular  aggravating  and  mitigating  circumstances may vary from case to case in the name of individualized sentencing, but at the

same time reasons for apportionment of weights shall be forthcoming. Such a comparison may  point out excessiveness as also will help repel arbitrariness objections in future.”

16. Considering the principles laid down in all these cases, let us now take the stock of  

situation in the present case.

17. There can be no dispute that this was a most dastardly murder of two helpless persons,  

one a woman and another, a child.  There was actually no fault on their part.  They did not invite  

any such dastardly action against themselves.  It is obvious that the relations between Anima’s  

husband  and  the  appellant/accused  were  strained.   Again,  it  cannot  be  denied  that  the  

appellant/accused was given to crimes, inasmuch as, firstly he used to eke out his livelihood by  

selling illicit liquor, besides he was convicted for an offence of murder and was already facing a  

sentence of life imprisonment, though his appeal was pending before the High Court.  These can be  

said to be the circumstances in favour of the death sentence being confirmed and indeed, the High  

Court has also given the additional reasons that the murder was committed in a most foul manner  

and the appellant/accused had shown extreme depravity of his mind in inflicting grave injuries.   

18. As against this, when we start counting the circumstances against the grant of death  

sentence, the first circumstance that comes to the mind is that this was not a pre-meditated murder.  

The appellant/accused, who was on bail, did go to the house of Anima and had assaulted the kid.  

We do not have any evidence to know under what circumstance, did the appellant/accused enter  

the house of Anima and what prompted him to assault the boy.  The evidence is actually wanting  

on that important aspect.  All the witnesses, who came on the spot, only came hearing the din  

created because of the shouting in the house of Anima, but before that, the appellant/accused had  

already entered the house.  After the neighbours came, all the neighbours were able to extricate  

Subhankar from the hands of the appellant/accused.  Undoubtedly, Subhankar had suffered some  

injuries and he was bleeding and, therefore, Anima took him to the tubewell.  Till then also, the  

appellant/accused did not assault the twosome.  In this, we must note that the appellant/accused  

had not come armed with any weapon in the house.  Therefore, it cannot be said that he had any  

such idea of assaulting or murdering or using any sharp cutting weapon as against the deceased.  It

was probably when he saw the dao in the hands of Shyamal (PW-6), the anger in the mind of the  

appellant/accused exploded and he just took the  dao from Shyamal, or to put it more correctly,  

wrested it from his hands and then started assaulting the deceased.  The witnesses are silent as to  

whether Anima had said anything and further, whether there was any exhortation given by anybody  

or whether the appellant/accused had any other reason to act at the spur of the moment.  It was as if  

a matchstick was applied to the wick of a bomb, resulting in the explosion thereof.  Thus, there  

was no pre-meditation aspect in the act of the appellant/accused, which was at the spur of the  

moment.  This was obviously a reason of the long standing hatred and enmity between the family  

of Anima, more particularly, her husband and others in the neighbourhood, all who were opposed  

to the appellant/accused eking out his livelihood by selling the liquor.  The appellant/accused may  

not be justified in eking out his livelihood by selling the liquor, but the fact of the matter is that he  

and his family was surviving only on that.  If that exercise was tried to be stopped by the husband  

of Anima and others, the appellant/accused was bound to nurture deep hatred in his mind, as a  

result of which, he acted.  There is also a history that husband of the deceased Anima had already  

reported against the appellant/accused that he had cut 75 plants of Banana.  One can imagine the  

mental state of the appellant/accused.  He had come back from the jail.  He was already under the  

shadow of life imprisonment.  Probably, his liberty was itself in jeopardy because of the report  

made against him.  As a result of all this, he acted in a sudden manner and his deep rooted hatred  

was exploded.  We do not think that this would be a case of pre-meditated cold blooded murder.  

Much was said by the High Court on the manner in which the murder was committed, inasmuch as  

the hands of Subhankar stated to have been chopped.  We have found out in the aforementioned  

cases that the cruel manner in which the murder was committed and the subsequent action on the  

part of the accused in severing the parts of the body of the deceased, do not by themselves, become  

the guiding factor in favour of the death sentence.  Here, the accused was nurturing the hatred even  

against Jeevan Krishna Chakraborty, who was obviously a leader and had joined the hands of the  

neighbours and the husband of the deceased in trying to throw out the appellant/accused.  The  

appellant/accused,  therefore,  seems  to  have  proceeded  to  his  house  and  assaulted  him  as  an

expression of his old and well nurtured hatred against the concerned persons.  Though wrongly, the  

appellant/accused probably has the feeling of injustice in his being singled out.

19. The further fact, which we would take into consideration is that the appellant/accused  

himself  has  two minor  children,  which has  come in the evidence and in the statement of the  

appellant/accused.  Again we have already seen as to how this Court has reacted in the case of Om  

Prakash v. State of Haryana (cited supra),  where the accused, under the belief that there was  

injustice caused to him, had eliminated 7 persons.  If we compare that case with the present case,  

we would not tend in favour of the death sentence.

20. The Learned Counsel appearing on behalf of the prosecution has relied on number of  

other cases, where the death sentence awarded by the Trial and the Appellate Court was confirmed  

by this Court.  We have seen those cases carefully, however, we do not think that all those cases  

could be comparable with the facts in the present case.  The cases relied on by Shri Tara Chandra  

Sharma, Learned Counsel for the respondents are:-

(i) Mahesh S/o Ram Narain & Ors. Vs. State of Madhya Pradesh reported in 1987  (3) SCC 80.

(ii) Sevaka Perumal & Ors. Vs. State of Tamil Nadu reported in 1991 (3) SCC 471.

(iii) Jai Kumar Vs. State of Madhya Pradesh reported in 1999 (5) SCC 1.

(iv) Ramdeo Chauhan Alias Rajnath Chauhan Vs. State of Assam reported in 2007  (7) SCC 455

(v) Suresh & Anr. Vs. State of Uttar Pradesh etc.  reported in 2001 (3) SCC 673.

(vi) Krishna Mochi & Ors. Vs. State of Bihar etc. reported in 2001 (6) SCC 81.

(vii) Om Prakash @ Raju Vs. State of Uttaranchal reported in 2003 (1) SCC 648.

(viii) Gurdev Singh & Anr. Vs. State of Punjab etc. reported in 2003 (7) SCC 258.

(ix) Praveen Kumar Vs. State of Karnataka reported in 2003 (12) SCC 199.

(x) Holiram Bordologi Vs. State of Assam reported in 2005 (3) SCC 793.

(xi) Union of India & Ors. Vs. Devendra Nath Rai reported in 2006 (2) SCC 243.

(xii) Babu @ Mubarik Hussain Vs. State of Rajasthan reported in 2006 (13) SCC 116.

(xiii) Ram Singh Vs. Sonia & Ors. reported in 2007 (3) SCC 1.

(xiv) Shivu & Anr. Vs. Registrar General, High Court of Karnataka & Anr. reported  in 2007 (4) SCC 713.

(xv) Prajeet Kumar Singh Vs. State of Bihar reported in 2008 (4) SCC 434.

(xvi) Mohan Anna Chavan Vs. State of Maharashtra reported in 2008 (7) SCC 561.

We do not think that we would follow the same course as indicated in the above cases, in  

view of the factual panorama of this case.

21. That leaves us with a question as to what sentence should be passed.  Ordinarily, it  

would  be  the  imprisonment  for  life.   However,  that  would  be  no  punishment  to  the  

appellant/accused, as he is already under the shadow of sentence of imprisonment for life, though  

he has been bailed out by the High Court.  Under the circumstance, in our opinion, it will be better  

to take the course taken by this Court in the case of Swamy Shraddananda (cited supra),  where  

the Court referred to the hiatus between the death sentence on one part and the life imprisonment,  

which actually might come to 14 years’ imprisonment.  In that case, the Court observed that the  

convict must not be released from the prison for rest of his life or for the actual term, as specified  

in the order, as the case may be.  We do not propose to send the appellant/accused for the rest of  

his life; however, we observe that the life imprisonment in case of the appellant/accused shall not  

be less than 35 years of actual jail sentence, meaning thereby, the appellant/accused would have to  

remain in jail for minimum 35 years.  With this observation, the appeal is disposed of, however,  

the death sentence is not confirmed and instead, would be substituted by the sentence that we have  

indicated.

            ………………………………..J. (V.S. Sirpurkar)

                                                                                                                                ………………………………..J.

(Deepak Verma)

New Delhi; August 27, 2009.