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V.D. Gyani, J.—Criminal Appeal No. 254(J) of 1997 and the Death Reference No. 2 of 1997 arise out of same judgment dated 18.8.97 delivered by Sessions Judge, Kamrup in Guwahati in Sessions Case No. 114(K) of 1996 thereby holding the accused Appellant guilty of offence punishable u/s 302 IPC and imposing upon him the capital punishment of death, hence the Reference No. 2 of 1997 u/s 366 of the Code of Criminal Procedure.
Apart from the above criminal appeal, the accused Appellant has also been convicted u/s 302 IPC and sentenced to undergo imprisonment for life vide judgment dated 11.11.97 delivered by Addl. Sessions Judge, Kamrup in Sessions Case No. 80(K) of 1996 holding him guilty of offence punishable u/s 302 IPC and sentencing him to undergo imprisonment for life with fine of Rs. 10,000/- or in default of payment of fine to suffer four years R.I. Aggrieved by the same, the accused Appellant has also preferred an appeal from Jail registered as Criminal Appeal No. 2(J) of 1998. This reference to Appeal No. 2 (J) of 1998 is only by way of statement of a necessary fact and explaining the reason for appeal No. 254(J) of 1997 and Reference No. 2/97 being taken up together for hearing. The accused Appellant, has been sentenced to death, and for almost six months ever since the pronouncement of death sentence, by the trial Court is suffering the mental torture and agony, therefore, the reference as well as the appeal which despite being listed not taken up for hearing for one or the other reasons, realising the agony that the accused Appellant has to undergo both the appeal and the death reference were directed to be listed together and heard without any further loss of time, keeping this object in view, the preparation of paper book in Criminal Appeal No. 2 of 1998 was dispensed with.
Since the Appellant was un-represented Mr. K.K. Mahanta was appointed at State expense on remuneration as fixed by the Court to appear and argue the matter on behalf of the Appellant. He has accordingly appeared and argued the matter.
We are presently taking up Criminal Appeal No. 254(J) of 1997 along with death reference No. 2 of 1997. We have heard Amicus Curiae for the Appellant in Criminal Appeal No. 254(J) of 1997 as also the learned Public Prosecutor Ms. K. Deka appearing for the Respondent-State. She has supported the Reference and death penalty as imposed by the Trial Court.
Before proceeding any further, few basic facts leading to the Appellant''s prosecution may now be noted.
The occurrence took place around 7 or 7.30 in the morning on 24.4.1996. The place of occurrence is Chamber Road, Fancy Bazar in Guwahati. It is alleged that the accused, Mahendra Das @ Gobinda Das came with a sword like weapon and butchered one Hara Kanta Das chopping off his neck. The head was severed from the neck. Hara Kanta was assaulted, he fell to the ground whereupon the accused still persisted in dealing more blows, amputating his right hand also. Thereafter, the accused picked up the severed head of Hara Kanta by one hand and with blood driping weapon in the other, and proceeded to nearby Police Out Post situated in Fancy Bazar. There is a small tea-stall patronised by truck drivers, cleaners, handimen who invariably used to take tea at this stall. Even at the time of occurrence some of them had been standing around the tea-stall. The accused entered the police Out Post shouting the slogan "Joy Assam". He was asked by the Police constable to keep aside the severed head and the weapon. On being asked the accused declared his name as Mahendra Nath Das. Constable Amrit Thakuria (since deceased) asked Ratneswar Barman, P. W. 2 to arrest the accused, which he accordingly did. Almost simultaneously, the matter was telephonically reported to Panbazar Police Station. On receiving information P.W. 10 arrived at the Out Post, he seized the dao, as per exhibit 1 and the blood stained cloths (under wear) of the accused as per exhibit-3. In the meanwhile, a report, exhibit-4 was lodged at Panbazar Police Station. This report is short one, it is reproduced below as ready reference:
To
The O.C. Panbazar Police Station,
Guwahati.
Through Fancy Bazar Police Out Post.
Sir,
I beg to inform you that around 7.30 A.M. this 24th day of April 96, a man, Gobinda Das by name, suddenly attacked my father Sri Harakanta Das, who was standing on Chamber Road, Fancy Bazar, with a sword, cut his head and a hand-off, and then left, carrying the severed head.
At the time of occurrence Sri Pramod Singh, Kalu Ramji Singh and Ramadhar Chaudhury were present.
I pray to you to punish the guilty. This is my humble submission.
Thanking you,
Yours faithfully, Sd/- Sri Suresh Das, Santipur Ashram Road, Guwahati-9.
On the basis of this report, a case u/s 302 EPC was registered and taken under investigation. On completion of investigation, the accused was charged and tried for the above offence, his defence at the time of trial as can be gathered from his statement as recorded u/s 313 Code of Criminal Procedure was one of plain denial, at the same time adding, that the trial was vitiated on account of refusal of bail. The trial Court, however found him guilty and sentenced him, as already noted above, hence this appeal, and the connected death reference.
We have heard the appeal first, as it should be. The result of appeal would have a decisive effect on the death reference. Learned Amicus Curiae appearing for the accused has raised the following four points:
(i) The accused was denied a reasonable opportunity of defending himself against the charge;
(ii) The F.I.R., exhibit P-4 is hit by Section 154 Code of Criminal Procedure
(iii) Prosecution witnesses have departed from their earlier version and considerably improved upon their previous statements so as to suit the exigencies of the case. The trial Court has failed to consider these improvements made by the witnesses, and lastly ;
(iv) Even if the accused is held to have committed the offence charged, yet it is not one of those rarest of rare cases (as has been erroneously found by the learned Trial Judge) so as to call for the extreme penalty of death.
Ms. K. Deka, learned Public Prosecutor appearing for the Respondent-State on the other hand maintained that even if the F.I.R. Ext-4 is to be excluded from the consideration, yet the prosecution case as a whole cannot be thrown over board, as according to her the prosecution case is amply established and proved beyond and reasonable doubt. She also submitted that considering the cruel manner in which the ghastly crime was committed, the extreme penalty as imposed by the trial Court is not only within the guidelines as laid down by the Supreme Court in its several judgments, but is also fully justified on facts and circumstances of the case as established.
Before taking up the points as raised by the Amicus Curiae and the learned P.P., it would not be out of place to have look at the evidence adduced by the prosecution. Prosecution has examined as many as 10 witnesses including P.W., the Medical Officer who performed post mortem examination on the dead body of Harakanta Das, the I.O. P.W. 10 who investigated the case. Out of the remaining witnesses P.W. 3, Kalu Das, P.W. 5 Gaya Pd. Choudhury and P.W. 8 Gauri Sankar Thakur are eye witnesses to the occurrence and they have with one voice testified to the incidence as seen by them, the trial Court has very rightly noted that, but in slight variation of the narration of the incident which is but natural, there is consistency through out and their evidence stands fully corroborated by the medical evidence. There is no such contradiction much less any infirmity in their evidence so as to discard their testimony.
Now taking up the first point as raised by the learned Amicus Curiae, namely, denial of legal aid to the accused Appellant at the State expense, we would like to note that we are fully conscious of the Constitutional mandate as contained in Article 39A introduced by the Constitution (Forty-Fourth Amendment) of 1976 and the provisions contained in Section 304 of the Code of Criminal Procedure, 1973 as also by series of decisions on the point starting from (i) Hussainara v. The State of Bihar AIR 1979 SC 1369 , (ii) Madhav Hayawadanrao Hoskot Vs. State of Maharashtra, (iii) State of Haryana v. Darshana AIR 1979 SC 885 , (iv) Khatri and Others Vs. State of Bihar and Others, and (v) Suk Das Vs. Union Territory of Arunachal Pradesh, But the real question is whether the accused Appellant was in fact denied legal aid at State Expense. Let us turn to the findings recorded by the trial Court, the trial Court has noted:
It may be mentioned here that the accused was represented by counsel engaged by him. However, at the stage of argument, the accused disengaged his counsel Shri L.C. Kalita (vide order dated 27.6.97). The accused tried to engage Advocate Shri Hari Deka for which time was allowed and thereafter he engaged Advocate A.N. Zaman. After taking adjournment the said counsel ceased to appear before Court. Thereafter one Shri Singh, Advocate was engaged, but the said counsel also refused to accept the Vakalatnama from the accused. The accused was offered the services of a State Defence Counsel, but he declined to accept (Vide order dated 29.7.97). Thereafter the arguments of the Public Prosecutor were heard and the accused was given opportunity to make his submission, if any, through counsel on or before the date of delivery of the judgment. But no oral arguments were made on behalf of the accused. I have perused the case record and the materials.
In view of the above unassailed and unassailable position as noted by the trial Court, there is no substance in the submission made by the Amicus Curiae. It is a point of pure academics, on facts as found it cannot be said by any stretch of imagination that the accused Appellant was denied legal aid at State Expense.
The second point relates to admissibilhy of Ext. 4 as an FIR within the meaning of Section 154 Code of Criminal Procedure It is an admitted position that even before this F.I.R. Ext. 4 came to be lodged, a G.D. Entry No. 739, Ext -11 had not only been entered and recorded, but in fact investigation had also commenced as would be revealed from a mere reading of the G.D. Entry, which is also reproduced below as a ready reference:
Now Sri Mahendra Nath Das alias Sri Gobinda Das, son of Sri Tarun Chandra Das, a resident of village Bohori, P.S. Tarabari, District Barpeta appear at the out post with a severed human head and carrying a mit dao in his left hand and reports that he has cut Harakanta Das, a resident of Santipur, with the mit dao he is carrying on M.G. Road near Chambers Road and has taken the head along to the outpost, leaving the trunk. The man is arrested u/s 41 of the Code of Criminal Procedure and I am taking necessary steps. By a seizure list I have seized the dao the man was carrying and I am getting ready for an inquest on the severed head which is identified by the assailant. The O.C. Panbazar P.S. and Panbazar Div. Dy.S.P. immediately informed of this over phone. I personally take up the charge of investigation.
Even if the submission made by the learned Amicus Curiae that Ext-4 is hit by Section 162 Code of Criminal Procedure, in face of Ext. 11, the G.D. Entry, and it is held to be inadmissible as F.I.R. with the meaning of Section 154 Code of Criminal Procedure the moot question that arises for consideration is what is its ultimate effect on the prosecution case as a whole? Does it throw overboard the prosecution case? The CD. Entry was in point of time the first report which came to be lodged and going through the same it does disclose commission of cognizable offence. In fact it should have been treated as an FIR within the meaning of Section 154 Code of Criminal Procedure Learned Public Prosecutor is right in her submission that even if the Ext-4 is excluded from consideration an F.I.R. within the meaning of Section 154 Cr.P.C, it does not have any material effect on the veracity of the prosecution case.
It would not be out of place at this stage to record some leading authorities on the point. The object of an FIR is to obtain early information of crime activity and to record the circumstances before there is time for them to be forgotten and embellished. AIR 1945 18 (Privy Council) Even a telephonic message to the police to the effect that an injured person was lying, amounts to an FIR as held by the Supreme Court in Sakhram v. State of Maharashtra, 1969 (3) SCC 730 . Even if Ext. 4 is excluded, the receipt and recording of information by the police not being a condition precedent to the setting in motion of the criminal investigation which can be started even without an FIR Apren Joseph alias Current Kunjukunju and Others Vs. The State of Kerala, and The State of Uttar Pradesh Vs. Bhagwant Kishore Joshi, the prosecution case cannot be thrown out on that count. Rejection of the FIR, Ext. 4 would not detract the sworn testimony of the eyewitnesses which will have to be assessed on its own merits. No material turns on lodging of FIR, Ext-4 which was admittedly lodged after commencement of the investigation, such an FIR as has been observed by the Supreme Court in Balak Singh v. State of Punjab AIR 1975 SC 1926 loses its authenticity as being the first information on point of time before commencement of investigation. It is not open to any police officer to refuse to register a case when the report disclosed commission of a cognizable offence, "reasonability" or "credibility" of such information is not a condition for registration of a case as has been held by the Supreme Court in State of Haryana and others Vs. Ch. Bhajan Lal and others,
It is not as if the learned trial Judge has omitted to consider this aspect of the matter, keeping both the F.I.R. Ext-4 and G.D. Entry, Ext-11 before him side by side, the learned trail Judge has dealt with this aspect of the matter, albeit in a different manner referring to Aghnoo Nagesia Vs. State of Bihar, highlighting the evidence and evidentiary value of an F.I.R. As already observed above, even if Ext-4 is treated as inadmissible as it ought to be in the circumstances of the case, yet it does not result in creating a dent in the prosecution story as a whole.
Now coming to the question whether the evidence as adduced by the prosecution particularly that of P.W. 3 and 5, whom the Amiss Curiae has criticised as un-reliable for making convenient improvements in their previous statements as recorded u/s 161 or 164 Code of Criminal Procedure, it is significant to note that the criticism made by the Amicus Curiae is based on total misconception of law, treating as if the statements recorded either u/s 161 or 164 Code of Criminal Procedure are substantive pieces of evidence by no stretch of imagination it can be said to be substantive evidence is what is deposed to before the Court, no attempt as such was made to confront these witnesses with their previous statements as contemplated by the proviso to Sub-section (1) of Section 162 Code of Criminal Procedure read with Section 145 of the Evidence Act. In absence of any such course having been adopted by the defence counsel at the trial no contradiction can be said to have been duly proved. One may refer to Tahsildar Singh and Another Vs. The State of Uttar Pradesh, Except for the above point as regards appreciation of evidence and reliability of eye witness no other point has been raised, as in deed, it does not arise as such.
Really speaking no fault can be found with the appreciation of evidence which we have gone through and do not find any justifiable reason for taking a view other than the one taken by the learned trial Judge.
Apart from occular evidence of P.Ws. 3,5 and 9 there is ample corroborative evidence available on record in the shape of medical evidence. P.W. 9 has found the following injuries:
(i) Cut wound 8 cms x 1 cm x scalp deep present obliquely 2 cms above root of none and 2 cms left to midline underlying bone is cut partly.
(ii) Cut injury semilunar in shape obliquely on right side and back of head measuring 16 cms long bone deep, the anterior end of the cut is located below the tragus of right ear and the posterior end of the cut is located just below the occupant, right ear is cut completely and underlying skull bone and 2nd cervical vertebrae and cut partly and the posterior end of the cut extends upto a point below the angle of lower jaw on left side. This cut injury coincides with cut injury No. 3.
(iii) Cut injury obliquely at the level of 2nd cervical verterbrae which marges with the cut injury No. 2. The head is separated completely from the body. The lower end of this cut injury is located at 3.5 cms above the supra sternal notch anteriorly.
(iv) Cut injury measuring 12 cms x 5 cms x bone deep obliquely on the back of left arm with bevelling upper margins 10 cms below the acromion tep (Defence cut).
(v) Cut injury transversely at 2 cms above the right writ joint completely separating the right hand from the right forearm.
(vi) Cut injury obliquely on the back of the left forearm 6 cms below the decranstip measuring 9 cms x 6 cms x bone deep, size (defence wound).
(vii) Cut injury on left shoulder 6 cms x l.5 cms x 2.5 cms deep obliquely at middly.
(viii) Cut injury 4.5 cms x 1 cm x 1 cm deep (at middle) on right side of nose and right check 3 cms above the tip of nose.
(ix) Cut injury 4 cms x 2 cms x bone deep on right side of face and chin 2 cms right to mid point on the chin. Blood stains adherent to cut margins resist washing.
These injuries speak for themselves. It is not a case of hit and run. One can well gague the time taken for inflicting the above injuries, thus enabling the eye witnesses to see the occurrence. There is Res Gestae evidence of post crime conduct of the accused which again goes to support the prosecution case. Apart from direct evidence of eye witnesses as has been rightly noted by the learned trial Judge, the evidence relating to seizure of incriminating articles is also fully proved which in its entireity leave no manner of doubt that it was none else than the accused who committed the murder of Harakanta.
It was urged by the learned Amicus Curiae that even if the accused is held to be guilty of offence punishable u/s 302 IPC, yet there is no such aggravating circumstance for imposing the penalty of death as imposed by the trial Court. Learned Public Prosecutor Mrs. Deka however maintained that the ghastly gruesome nature of the crime, the place of occurrence, just few steps away from the Police Out Post, in open broad-day light, afford ample justification for capital punishment. Even after the deceased had fallen to the ground the accused continued assaulting him with sword like weapon inflicting as many as 9 incised wounds on vital parts of the body, the face was completely disfigured. These factors can and should not be overlooked, urged the learned Public Prosecutor. As if it was not enough, the accused took the severed head in one hand and the weapon of attack in another to the Police Out Post demonstrating to the spectators the barbaric act committed by him.
Learned trial Judge has referred to the guidelines as laid down by the Supreme Court in Bachan Singh Vs. State of Punjab, and has also referred to the following cases:
(1) Machhi Singh and Others Vs. State of Punjab,
(2) AIR 1989 SC 1456: Allauddin Mian v. State of Bihar
(3) Dhananjay Chatterjee alias Dhana Vs. State of W.B.,
(4) Ravji alias Ram Chandra Vs. State of Rajasthan,
It was in the light of principles laid down in these cases that the death penalty has been imposed by the trial Court.
"Deterrence" seems to have shade its terror, that is why such broad day light murders are committed. It is not on the basis of any sweeping generalisation but confining to the facts of the case. It cannot be denied or disputed that the crime was pre-meditated, it is amply reinforced by the fact that the accused came armed with sword like weapon, material Ext. 1 and quite undeterred by the presence of many spectators who were taken tea or "Pan" at the nearby stall beheaded his victim. Even that did not satisfy him, he continued assaulting the victim even after his body had fallen to the ground, and amputated his limbs. It was diabolically planned and committed in cold blood murder. It is the nature and gravity of the crime which is germane for consideration of an appropriate punishment in a criminal trial, as has been pointed out by the Supreme Court in Raoji''s Case (supra). The Supreme Court in Surja Ram Vs. State of Rajasthan, has held:
For deciding just and appropriate sentence to be awarded for an offence, the aggravating and mitigating factors and circumstances in which a crime has been committed are to be delicately balanced in a dispassionate manner and discretionary judgment has to be exercised by the Court'' in the particular circumstances of the case. Punishment must also respond to the society''s cry for justice against the criminal. While considering the punishment to be given to the accused, the Court should be alive not only to the right of the criminal to be awarded just and fair punishment by administering justice tempered with such mercy as the criminal may justly deserve, but also to the rights of the victims of the crime to have the assailant appropriately punished and the society''s reasonable expectation from the Court for the appropriate deterrent punishment conforming to the gravity of the offence and consistent with the public abhorrence for the heinous crime committed by the accused.
The ghastly manner in which the crime was committed has been referred to by the witnesses and also adverted to by the learned trial Judge. It is not as if in the heat of moment the accused dealt a sword blow, but it is a case where even after the victim fell down, the accused continued assaulting him and amputated his right hand and other limbs. If one looks at the injuries sustained by the deceased, as many as, 9 of them on different parts of the body as found by the Doctor performing autopsy - number of injuries speak volumes for itself. It was not a dark lonely place, the place of occurrence is a market place and one of the factors indicated by the Supreme Court in Bachan Singh''s case is social abhorrence, that flows from the act or crime committed by an accused and this element of abhorrence is writ large. The fact that the place of occurrence is just in the vicinity of Police Out Post and a Police Station, cannot also be excluded from consideration, the magnitude of crime committed is just in front of the Police Station, is all the more enhanced. We have given our anxious thought to find out any extenuating or mitigating circumstance so as to avoid the imposition of extreme penalty of death. We are conscious of the fact that even in a case of murder it is in rarest of rare cases that the death penalty is to be imposed. Learned Amicus Curiae urged that the accused at the time of commission of crime was a young man of 33 years and no motive has been imputed to him for commission of the crime. So far as the motive is concerned, while it is true that no motive was suggested but in a case, where eye witnesses have been examined, motive for commission of crime loses much of its significance. The accused was a young man of 33 years which is quite a mature age and it is not the case that the accused was lacking in maturity, a cold blooded murder has been committed in the morning of 24th of April. Sentence of death as imposed by the trial Court does not call for any interference in view of the facts and circumstances established in the case.
In the result, this appeal fails and is accordingly dismissed. The reference made by the learned Sessions Judge for confirmation of sentences u/s 366 Code of Criminal Procedure deserves to be accepted, it is accordingly accepted. The conviction and sentence as imposed by the trial Court is confirmed.