Calcutta High Court Commutes Death Sentence Of Man Posed As ‘Sadhu’ In Murder Of Woman & Her Daughter Over Monetary Dispute

The Calcutta High Court has commuted the death sentence of a man who allegedly posed as ‘Sadhu’ and killed a woman and her 17-year-old daughter over a monetary dispute in the year 2020.

A Death Reference and a Criminal Appeal emanated out of the Judgment passed by the Additional Sessions Judge (ASJ), by which the convict was found guilty under the offences punishable under Sections 376, 201, and 302 of the Indian Penal Code, 1860 (IPC). He was also sentenced to death penalty along with a fine of Rs. 20,000/- for the offence of murder.

A Division Bench comprising Justice Debangsu Basak and Justice Md. Shabbar Rashidi observed, “… taking into consideration the entire facts and circumstances of the case discussed hereinbefore and in consideration of the guidelines laid down by the Hon’ble Supreme Court in its various pronouncements, we are minded to commute the death sentence awarded to the appellant for the offence punishable under Section 302 of the Indian Penal Code, 1860, into one of life imprisonment. However, considering the age of the appellant as well as the nature of offence and other circumstances obtaining from the facts of the case including the fact that there were similar allegations against the appellant in the past and he habitually engaged himself in extracting money from unsuspecting members of society on the plea of curing diseases or bestowing corporeal and incorporeal benefits as Gurubaba, the society at large requires to be protected from the appellant for a considerable length of time.”

For the above reason, the Bench clarified that the imprisonment of life so awarded to the convict shall mean imprisonment for life without remission until 40 years from the date of his arrest.

Senior Advocate Kallol Mondal represented the Appellant/Convict, while Public Prosecutor Debashish Roy and Senior Government Advocate Amita Gaur represented the Respondent/State.

Case Background

One of the victims was married and had a 17-year-old daughter (other victim). Allegedly, she had strained relations with her husband which she frequently used to inform her sister i.e., the Complainant herein. In May 2020, in the afternoon, the Complainant was informed over telephone that her sister and daughter of such sister were murdered. Hearing the news, she rushed to the house of her sister and found that the dead bodies of her sister and niece were being taken for post mortem examination. She lodged a complaint to the police, stating that her sister and niece were killed by her brother-in-law with others. The police took up investigation of the case and on its completion, submitted charge sheet against the Appellant-convict and one another.

The deceased’s husband was not charge-sheeted and was not sent up for trial. It was alleged that the deceased had engaged one ‘Sadhubaba’ i.e., the Appellant herein and gave Rs. 83,000/- to him and had agreed to pay another Rs. 61,000/- to him. Allegedly, the Appellant had demanded Rs. 1,44,000/- for curing the burn spots on the victim’s (deceased woman’s daughter) body upon performing a ‘Joggo’. However, the burn spots were not cured and rather both the victims were allegedly murdered by the Appellant. The Trial Court convicted and awarded death sentence to the Appellant and hence, the case was before the High Court. The counsel for the Appellant submitted that the case is entirely based on circumstantial evidence and there is no direct ocular evidence in support of the case of prosecution to establish the offences of rape and murder.

Reasoning

The High Court after hearing the contentions of the counsel, noted, “… the appellant recorded statements under Section 161 of the Code of Criminal Procedure and on the basis of such statements, the alleged offending sharp cutting weapon (Bonti) was recovered and seized. Such statements as well as the seized articles were proved at the trial. Although, according to the opinion of autopsy surgeon the immediate cause of death of the victims was asphyxia due to gagging and smothering but as many as 16 injuries were detected on the persons of victim F1 out of which 11 injuries were incised wound.”

The Court said that in view of the nature of injuries, use of sharp cutting weapon like ‘Bonti’ in the commission of the offence cannot be ruled out, and therefore, there is no reason to interfere with the impugned Judgment and Order insofar as it relates to the conviction for the offence under Sections 302 and 201 of the IPC.

“So far as the conviction of the appellant for the offence punishable under Section 376 of the Indian Penal Code is concerned, the witnesses examined on behalf of the prosecution have stated that the appellant committed rape upon F2 once and when he was trying to commit rape for the second time, F1 regained her senses. Such statement has not been corroborated by PW15 or the other witnesses. The medical evidence of PW28 also did not find any injury to support the case of the prosecution with regard to sexual assault upon the victim”, it added.

The Court observed that no injury appears to have been detected on the posterior part or private parts of the deceased daughter and hence, a conviction under Section 376 of the IPC cannot be sustained.

“So far as the quantum of punishment imposed upon the appellant especially that for the offence punishable under Section 302 of the Indian Penal Code is concerned, by the impugned order of sentence, the appellant has been awarded death penalty. No doubt, the appellant has been held guilty of very heinous act of murder of two ladies, apparently on account of monetary disputes”, it remarked.

The Court reiterated that death penalty should be resorted to in exceptional circumstances where the Court awarding the sentence is convinced that the case falls within the category of “rarest of rare cases” and a punishment other than death sentence would be insufficient in the facts and circumstances of the particular case.

“The court must also come to a definite conclusion that the possibility of reform of the convict stood foreclosed. In order to hold a case as ‘rarest of rare case’ the Hon’ble Supreme Court has directed evaluation of the circumstances on the parameters of ‘aggravating circumstances’ and ‘mitigating circumstances’. That apart, in a case of murder, it is to be conclusively established that the offence was committed in a manner which can be termed as cold blooded. The age of the convict is also a relevant factor to be considered for awarding such punishment. The Hon’ble Supreme Court has noted time and again that a convict, too young or too old, should not be awarded with death penalty”, it further noted.

The Court also took note of the fact that the Appellant is aged about 45 years and his psychological assessment did not reveal that he was suffering from any diagnosable psychiatric condition, mental illness or intellectual disability.

“The socio-economic assessment report depicts that the appellant has no brother. He has two sisters alive residing in their respective in law’s house. Another sister is dead. His parents are already dead. He has his wife, a son and a daughter. He did not receive adequate care and protection in his age of adolescence and did not receive the basic education. The report also demonstrates that the appellant comes from a poor economic background. His ancestral dwelling house was already sold which forced him to live in temples, Ashrams and other religious places. No record of any criminal antecedent against the appellant or any member of his family was reported on enquiry. The report submitted by the concerned police station however, disclosed that the appellant was an accused in a case registered at Mayureshwar Police Station but later on he was acquitted upon trial”, it said.

Conclusion

Furthermore, the Court noted that the Appellant had no fixed income and used to earn from doing religious works in temples and Ashrams. It added that earlier he had a cloth business and there was no history of unstable social and psychological behaviour against the Appellant.

“His conduct in the correctional home was reported to be good. … In the facts and circumstances of the case, we are not in a position to arrive at a definite finding that any punishment other than death penalty would be insufficient and possibility of such punishment is absolutely foreclosed. The State has also not placed anything to establish that the appellant is beyond reformation”, it concluded.

Accordingly, the High Court disposed of the Death Reference along with the Appeal, commuted the death sentence for the offence of murder, and set aside the conviction for the offence of rape.

Cause Title- Sunil Das@ Hari Charan Das @ Hari Baba @ Swarup Roy @ Gurudev v. State of West Bengal (Case Number: DEATH REFERENCE NO. 06 OF 2023 with CRIMINAL APPEAL (DB) NO. 191 OF 2024)

Appearance:

Appellant: Senior Advocate Kallol Mondal, Advocates Krishan Ray, Souvik Das, Anamitra Banerjee, and Akbar Laskar.

Respondent: Public Prosecutor Debashish Roy, Senior Government Advocate Amita Gaur, and Advocate Rajnandini Das.

Click here to read/download the Judgment