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CASE NO.: Appeal (crl.) 4  of  2000

PETITIONER: RAM DEO CHAUHAN & RAJ NATH CHAUHAN

       Vs.

RESPONDENT: STATE OF ASSAM

DATE OF JUDGMENT:       31/07/2000

BENCH: K.T. Thomas & R.P. Sethi.

JUDGMENT:

SETHI, J. L...I...T.......T.......T.......T.......T.......T.......T..J     The appellant was charged under Sections 302 and 326 IPC for  having  caused the death of four persons of  a  family, namely,  Mr.Babani  Charan  Das,  Assistant  Engineer,  PWD, Morigaon  Division, aged 37 years, his wife Smt.Minati  Das, aged  about  30 years, their daughter aged 2-1/2  years  and Ms.Smriti  Rekha Das, sister of Babani Charan Das aged about 22  years.  He was also charged to have caused injuries with the sharp edged weapon to Smt.Jayanti Das, the mother of the deceased  No.1  and Shri Rajen Hazarika, neighbourer of  the deceased.   On  proof of charges, the Trial Court  convicted the appellant of the offences punishable under Sections 302, 326,  325  and 323 IPC.  As he was sentenced to death  under Section  302 IPC, the Trial Court did not feel the necessity of awarding separate punishments for offences under Sections 326,  325 and 323 IPC.  The Trial Court submitted the entire proceedings  to  the  High  Court for  confirmation  of  the sentence.   The  appellant also filed an appeal against  the order  of conviction and sentence passed by the Trial Court. Both  the Criminal Death Reference No.1 of 1998 and Criminal Appeal  No.109  of  1998 were disposed of  by  the  judgment impugned  in  this appeal by confirming the  conviction  and sentence awarded by the Trial Court.  Not satisfied with the impugned  judgment, the appellant has preferred the  present appeal in this Court.

   We  have  heard the learned amicus curaie appearing  for the  appellant  and the learned counsel for the  respondent. We  have  also perused the record and minutely examined  the evidence led in the case.  The report recording mental state examination of the appellant has also been examined by us.

   Learned amicus curaie has submitted that as there was no direct  evidence available in the case it would not be  safe@@         JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ to  convict  and sentence the appellant for the  offence  of@@ JJJJJJJJJJJJJJJJ murder  as  has been done by the courts below.  We  are  not satisfied  with  this submission.  It is generally  believed

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and   accepted   that  the  witnesses   may  lie   but   the circumstances  cannot.   The Trial Court has enumerated  the circumstances appearing against the accused as under:

   "(1)  On  the fateful day, inmates of the house  present were  Bhabani  Charan  Das, his wife Minati  Das,  his  only daughter Darathi Das and his sister Smriti Rekha Das and the accused  Ramdeo  Chauhan  alias  Rajnath  Chauhan.   Another inmate of the house, mother of Bhabani Charan Das was absent on that day.

   (2)  All  the four members of the ill-fated family  were found  dead  and  their  dead bodies  were  lying  in  three different  rooms  in  pool of blood and all  the  doors  and windows  of  the  house were closed and the front  door  was under  lock to give an impression that inmates of the  house had gone somewhere.

   (3) At that time, only alive person present in the house was  the accused and no prudent person would believe that he had  no  knowledge  that all the inmates of the  house  were lying dead inside the rooms.

   (4)  Intentionally he gave false information to PW5 that all four inmates of the house were sleeping in their rooms.

   (5)  When PW5 entered into the room and shouted sleeping the  ugly  scene,  she was attacked by  the  accused  Ramdeo Chauhan alias Rajnath Chauhan.

   (6)  Perhaps, if the handle of the spade would not  have been  broken  during tussle there was every  possibility  of killing PW5 by the accused with the spade.

   (7)  He also attacked Rajen Hazarika (PW1) when he  went to save the old lady from his (accused) attack.

   (8)  Conduct of the accused in attacking and  assaulting PW5  and PW1 is another actor indicating his involvement  in the ghastly crime.

   (9) The accused also led the police to recover the spade used in commission of the crime which was used in commission of the crime which was seized and exhibited in the court.

   (10) Lastly, the confessed his guilt."

   The   Trial  Court  has   rightly  concluded  that   the prosecution had fully established the existence of aforesaid@@                 JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ circumstances  and the circumstances narrated created such a@@ JJJJJJJJJJJJJJJJJJJJJJ chain  complete in itself which lead to the only  conclusion that  the  accused had committed the crime for which he  was charged.   The High Court also after examining the statement of  the  witnesses, the recovery memos and the  confessional statement of the accused came to the conclusion:

   "The  entire evidence brought on the record of the case, in  our  considered view, creates a chain  of  circumstances with  no  missing  link  which points to the  guilt  of  the accused  beyond reasonable doubt.  Minor contradictions  and inconsistencies  here  and there in the peculiar  facts  and circumstances  of  the present case do not create any  doubt

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about the prosecution case."

   Both  the courts below have concurrently concluded  that the  incriminating circumstances in the case are such  which lead  only  to  the hypothesis of the guilt  and  reasonably exclude every possibility of innocence of the appellant.  It has  also  rightly been found that the circumstances  proved against  the appellant form themselves into a complete chain unerringly pointing to his guilt.

   This  Court  has  in   Malempati  Pattabhi  Narendra  v. Ghattamaneni  Maruthi  Prasad & Anr.  [2000 (5) SCC 226  has ruled   that  in  an  appeal   under  Article  136  of   the Constitution  of  India normally the concurrent findings  of fact  relating to appreciation of evidence would not be  re- opened.   In  the present case we do not feel and  find  any good  ground  to  deviate  from the  general  practice.   No circumstance  has been referred to requiring re-appreciation of  evidence.   We have thus no hesitation in upholding  the conviction  of the appellant as recorded by the Trial  Court and confirmed by the High Court.

   Regarding  Sentence During the pendency of the appeal it was suggested that the appellant might have been deprived of his senses at the time of occurrence or caused the deaths on account  of  sudden  provocation.  As the accused  had  been convicted  and  sentenced  to death we thought that  in  the interests  of  justice  we  should have a  report  from  the competent  expert  of  mental   illness.   Consequently  the arrangements   were  made  to   keep  the  appellant   under observation  in  the mental hospital at Tejpur, Assam.   The members of the family of the appellant were also directed to be contacted for ascertaining his antecendents.  The experts of  the mental hospital at Tejpur were directed to prepare a report regarding all aspects relating to cognitive faculties (present  and  past)  to the extent  ascertainable  by  them within  a  period  of one month from the date of  our  order passed on 29.3.2000.

   In  obedience  to  our   directions  the  appellant  was admitted  for observation in the hospital and was kept under observation with effect from 10.4.2000 to 20.4.2000.  During the  aforesaid  period  his ward  behaviour,  socialisation, personal  hygiene,  food  intake  and  sleep  patterns  were periodically   observed.    His  mental   state   was   also periodically  examined  by psychiatrists independently.   He was  examined by a Medical Board headed by Dr.J.C.   Sarmah, SDM  & HC as Chairman, the other members of the Board  being Dr.K.   Pathak, Asstt.Professor, Psychiatry and Dr.B.S Neog, M&HO-I,  Psychiatry.  To gather antecedents, history of  the appellant  and his family, his father was interviewed by the Medical   Board  on  12.4.2000.    The  appellant  was  also permitted to meet his father in order to watch his emotional reaction during the interaction.  The Board has reported:

   "Development  history:   As mother did not come,  detail history regarding birth is not available.  So far father can remember  it was uneventful normal delivery.  His mile-stone development  was  normal.  There is no history  of  neurotic traits  in the childhood.  He was quarrelsome and  irritable since   childhood.   From  10  years   of  age   he   became increasingly   quarrelsome  and   started  quarreling   with neighbours  and friends very frequently for trivial reasons. But  he  was not involved in physical fighting or any  other activities  like stealing, gambling etc.  His performance in

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the  school was average.  No abnormality was observed in his behaviour during childhood.

   When  he was 14 years old, that is about 7-8 years back, one  day  he ran away from home and remained untraced.   The father  tried  to  find  him  out  and  searched  everywhere possible.   But there was no message from him.  Then after 6 months  Rajnath Chauhan (Ramdeo) was brought to his home  by the  police.   Father says that then only then came to  know that  Rajnath (Ramdeo) was involved in murder case.  Rajnath admitted before parents about committing the murder, but did not disclose anything in detail, according to father.

   Father  says  that  before  leaving home  there  was  no abnormality   observed   in   Rajnath’s   behaviour   except irritability.   Ramdeo  was  on parole for about  8  months. During  this  period  he  was  at  home  and  then  also  no abnormality was noticed in his behaviour.  He was helping in house-hold chores and sleep was normal.

   History of physical illness:

   There is no history of any major physical illness in the past.   There is no history of epilepsy or head injury.   At present  on physical examination his physical parameters are normal.

   Family history:

   There  is no history of mental illness in both  paternal and maternal side.

   Observation during hospital stay:

   In the initial period of his stay in the hospital he was tense,  anxious  and was uncooperative.  He was not  talking properly  and  replied  in monosyllabic  terms  on  repeated persuation.  From second day onwards he started cooperating. Throughout the period of his stay no abnormality is observed in   his  behaviour  and   emotion.   Gradually  he  started socialising   with   hospital  staff   though  it   is   not spontaneous.   His  sleep pattern is normal.  He  maintained personal  hygiene.   Food  intake is normal.  He  shows  the tendency of dramatization at times.

   Mental State Examination:

   Appearance  and general behaviour - Ramdeo Chauhan  sits comfortably  throughout  the  interview   sessions.   He  is dressed  properly.  He maintains eye to eye contact.  He  is cooperative.  Personal hygiene is maintained.

   Speech  is slow and hesitant initially.  Later on normal flow and rate is observed.  Speech is relevant and coherent. No abnormality of speech patterns are observed.

   Mood  and  affect are euthmic, submissive in nature  and congruity is present.

   No abnormality in the thought process is observed.

   There is no perceptual disorder.

   Higher function - consciousness is clear.

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   Attention can be drawn and it is sustained.

   Memory - immediate, recent and remote memory are intact.

   Orientation  - In relation to time place and person  are intact.

   Social  and  personal judgment - intact, when asked  his reaction  to  three  different situations he  gave  rational answers.

   Similarity  test- He could tell the similarities between different pairs of items.

   Proverb test:  He says that he does not know any proverb - which is normal considering his socio-economic back ground and prolonged confinement.

Intelligence- Average.

   Insight  is  intact:  He knows the reason why he  is  in jail and now prays for his release.

   Hence,  from  observation of behaviour and mental  state examinations  at  present his cognitive faculties are  found within  normal  limit.   From   the  available  informations gathered  about  his past, there is no evidence  to  suggest abnormalities in mental faculties also in the past."

   It  may  also be pointed out that when during the  trial the  appellant was examined for determination of his age,  a team  of  doctors headed by Dr.Bhushan Candra Roy had  found that  "the  individual  was mentally sound on  the  date  of examination.   Tntelligence  and memory were average on  the date  of  examination".   In view of what has  been  noticed hereinabove,  it  cannot be said that the appellant was,  in any way, deprived of his senses even temporarily at the time of  commission of offence.  It appears from his confessional statement,  which has been duly proved, that he had prepared himself  for committing this ghastly crime of murdering four innocent  persons.   There is no doubt in our mind that  the murders  have been committed by the appellant after previous planning  which  involved extreme brutality.  This Court  in Balwant  Singh  vs.  State of Punjab [1976 (1) SCC 425]  has ruled that only for special reasons which are required to be stated,  the  death  sentence  can be  passed.   It  is  not possible  to  catalogue the special reasons  justifying  the passing  of  the  death sentence which are  required  to  be determined  under the facts and circumstances of each  case. In  Bachan Singh v.  State of Punjab [1980 (2) SCC 684] this Court  held:  "...for making the choice of punishment or for ascertaining  the existence or absence of "special  reasons" in  that context, the court must pay due regard both to  the crime  and the criminal.  What is the relative weight to  be given  to the aggravating and mitigating factors, depends on the  facts  and circumstances of the particular case.   More often  than not these two aspects are so intertwined that it is  difficult to give a separate treatment to each of  them. This  is so because ’style is the man’.  In many cases,  the extremely  cruel  or  beastly manner of  the  commission  of murder  is  itself  a  demonstrated index  of  the  depraved character  of  the  perpetrator.   That is why,  it  is  not desirable to consider the circumstances of the crime and the circumstances  of  the criminal in two separate  water-tight

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compartments.   In  a  sense,  to kill is to  be  cruel  and therefore  all murders are cruel.  But such cruelty may vary in  its  degree  of culpability.  And it is  only  when  the culpability assumes the proportion of extreme depravity that "special reasons" can legitimately be said to exist."

   Commission  of  the  crime in a brutal manner  or  on  a helpless child or the woman or the like were held to be such circumstances  which  justify  the   imposition  of  maximum penalty.  In Magahar Singh v.  State of Punjab [1975 (4) SCC 234]  this  Court  held that "for pre-planned  cold  blooded murder death sentence is proper".

   The  Trial Court, after referring to various  judgments, concluded:   "In  the case in our hand, it is  apparently  a pre-planned,  cold-blooded, brutal quadruple murder.  It  is relevant  that  the murder was committed in the most  brutal manner  with severe cruelty inflicting number of injuries on each victim including a female baby hardly of 2-1/2 years of age  and two helpless women.  They were murdered while  they were in deep sleep after lunch keeping the doors and windows of  the house open without suspecting any foul play from any quarter.   It  is,  in my view, a rarest of the  rare  cases which  is of exceptional nature.  Facts and circumstances of the  case justify the extreme penalty provided U/S 302  IPC. The  accused  seems to be a menace to the society and in  my view,  sentence  of  life imprisonment would  be  altogether inadequate,  because the crime is so brutal, diabolical  and revolting  as  to  shock the collective  conscience  of  the community.   Extreme  penalty, in my view, is  necessary  in such cases to protect the community and to deter others from committing  such  crime."  The High Court also  referred  to various judgments of this Court and found on facts:

   "There cannot be any manner of doubt that in the present case  murders have been committed by the accused after  pre- meditation  with a motive to commit a theft.  The crime  can be  described to be heinous, dastardly, gruesome and  cruel. The persons asleep have been killed in a merciless manner by the  accused  who has no value for human lives.   The  crime committed  by  the  accused  falls  within  the  aggravating circumstances  as  it  has  been  committed  after  previous planning  involving  extreme  cruelty.  The murders  in  the present  case involve exceptional depravity.  In view of all this  the question arises whether the single circumstance of the  accused being too young should be good enough for us to award  lighter punishment or not.  We have not been able  to lay  our  hands upon any observations of the Apex Court  and none  has  been brought to our notice during the  course  of arguments that even if all the aggravating circumstances are present  in a particular given case, single circumstance  of the  accused being too young or too old would outweigh other aggravating circumstances and the court must on the basis of a  single  circumstance  grant lighter  punishment.   Having given our deep and thoughtful consideration and after giving due  weight  to  the  mitigating   as  well  as  aggravating circumstances  which have been referred to above, we are  of the  view that the accused in the present case must be given death  sentence.   The present is one of the rarest of  rare cases in which infliction of extreme penalty is called for."

   It  is  true  that in a civilised society  a  tooth  for tooth,  and  a nail for nail or death for death is  not  the rule  but it is equally true that when a man becomes a beast and  menance to the society, he can be deprived of his  life

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according   to   the  procedure   established  by  law,   as Constitution  itself has recognised the death sentence as  a permissible  punishment for which sufficient  Constitutional provision  for  an appeal, reprieve and the like  have  been provided  under  the law.  It is true that life sentence  is the  rule  and  death  sentence is  an  exception.   We  are satisfied that the present case is an exceptional case which warrants  the  awarding of maximum penalty under the law  to the accused/appellant.  The crime committed by the appellant is  not  only  shocking  but it  has  also  jeopardised  the society.  The awarding of lesser sentence only on the ground of  the  appellant being a youth at the time  of  occurrence cannot be considered as a mitigating circumstance in view of our  findings  that the murders committed by him  were  most cruel,  heinous  and dastardly.  We have no doubt  that  the present case is the rarest of the rare requiring the maximum penalty,  imposable  under law.  There is no merit  in  this appeal  which  is  dismissed.  The  conviction  of  sentence passed  by the Trial Court, as confirmed by the High  Court, is upheld.