Holding

The Court held that the conviction under s.326 IPC must be set aside and that the death sentence was not warranted as the case did not satisfy the ‘rarest of rare’ test, substituting it with a term of imprisonment of not less than 35 years.

Summary

Haru Ghosh was convicted of murdering a woman (Anima) and her 12‑year‑old son (Subhankar) and of attempting to murder a 60‑year‑old man (Jeevan Krishna) under IPC sections 302, 307 and 326, receiving a death sentence and additional rigorous imprisonments. The Supreme Court examined the voluminous eyewitness and medical evidence, finding the conviction for murder and attempted murder well‑founded but held that the conviction under section 326 was unnecessary. It then considered whether the death penalty was justified under the "rarest of rare" doctrine, concluding that the killings were not pre‑meditated and that mitigating factors – including the appellant’s two minor children and lack of pre‑meditation – outweighed the aggravating circumstances. Consequently, the Court set aside the death sentence, substituted it with life imprisonment of at least 35 years, and dismissed the conviction under s.326. The appeal was therefore disposed of.

Issues considered

The validity of the conviction under IPC section 326 in addition to sections 302 and 307.
Whether the murder constituted a 'rarest of rare' case justifying the death penalty.
Whether the killings were pre‑meditated or committed in the spur of the moment.
Appropriate sentencing in view of mitigating and aggravating circumstances.

Legislation cited

Code of Criminal Procedure, 1973s. 354(3)
Indian Penal Code, 1860s. 302, s. 307, s. 326

Subjects

murderdeath penaltyrarest of rare doctrineIPC sections 302, 307, 326life imprisonmentmitigating circumstancespremeditationcapital punishmentsentencing

Judgment

[2009) 13 (ADDL.) S.C.R. 847

HARU GHOSH A
v.
STATE OF WEST BENGAL
(Criminal Appeal No. 1173 of 2008)

AUGUST 27, 2009
B
[V.S. SIRPURKAR AND DEEPAK VERMA, JJ.]

Penal Code, 1860 - ss. 302, 307, 326 - Murder of a
woman and her young child and also attempt to murder a man
aged 60 years - Conviction u/ss.302, 307,326 - Award of C
death sentence as also rigorous imprisonment for 7 years for
offence punishable uls. 307 and rigorous imprisonment for 5
years for offence punishable uls. 326 - Upheld by High Court
- On appeal held: Direct evidence of eye witnesses describing
~ murderous attack on victim, Thus, courts below rightly held o
the accused guilty for offence punishable uls.307 - Conviction
\ u/s. 326 not required and thus, set aside - Not a case of pre
meditated murder - Accused acted in a spur of moment -
Also accused has two minor children - Death sentence not
confirmed - Accused to remain in jail for minimum 35 years E
- Sentence/Sentencing.

The Sessions Judge convicted the appellant-
;. accused u/s.302 IPC for committing the murder of A, aged
30 years and her son S, aged 12 years and ulss.307, 326
IPC for attempt to murder J, aged 60 years. It awarded F
death sentence to the appellant on account of the murder
of A and S, and also imposed rigorous imprisonment for
seven years for offence punishable uls. 307 IPC and
further rigorous imprisonment for 5 years for the offence
punishable u/s.326 IPC. High Court upheld the order. G
~· ·..C Hence the present appeal.

Disposing of the appeal, the Court

847 H
848 SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.

A HELD: 1.1. There is voluminous evidence in respect ...... ,.-4.

of both the incidents, namely, the murder of A and S and ".-
the attempt to commit murder of J. The witnesses S-PW-
.;._
1, PW-2, PW-8, PW-3, PW-4, PW-5 and PW-6 were all '
neighbouring witnesses. All these witnesses graphically ~
~

B described the murderous attack by the appellant-accused
on S and A. In the cross-examination nothing has come
from these witnesses which would render the evidence
suspicious in any manner. [Para 6] [857-8-C; G] --1 ...,
1.2. From the evidence of the doctor-PW-18, who
c performed the post-mortem on the body of A, it is clear
that the appellant had no other intention but to commit
murder. A had suffered as many as six injuries referable
to the sharp cutting weapon on the most vital parts of her
~--
body like neck. The other two injuries were on her thigh
D and left knee joint. S had suffered 10 injuries on the ~
equally vital parts of the body like head, right eye, face,
shoulders, and right arm. His wrist of the right hand was
separated from the hand completely. Thus, the appellant-
accused was rightly found guilty of murdering these two
-
E helpless and defenceless persons apparently for no fault
on their part. [Para 7] [857-H; 858-A-C]

1.3. The submission that appellant was on inimical
terms with the witnesses and, therefore, the witnesses ~

F
had falsely implicated him, is 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. [Para 8] [858-0-E]

G 1.4. The evidence of witnesses PW-10 and PW-12
which was corroborated by other witnesses PW-26, PW- )-- -1
29, PW-30, PW-17 and PW-27 clearly brings out that the
appellant, immediately after murdering A and S assaulted
J. The evidence of J is seen along with the medical
H
HARU GHOSH v. STATE OF WEST BENGAL 849

evidence regarding the injuries and there is no doubt A
. ""' >
., about the correctness of the findings reached by the
Sessions Judge and the High Court. The assault on J
was so severe that he lost one of his fingers, being right
I hand index finger. The trial court and the appellate court
<(.
correctly concluded that the accused is guilty for the B
offence ·-punishable u/s. 307 IPC. In fact, on that count it
was ·not necessary for the trial court to additionally
..... convict him for the offence u/s. 326 IPC. That part dealing
;
~
with the conviction and sentence of the appellant u/s.326
IPC is set aside. [Para 9] (858-F-H; 859-A-C] c
2.1. There cannot be a straightjacket formula
dep(!nding on the number of murders committed or the
manner in which the murder was committed or that the
appell_ant was already undergoing the sentence of
""' rigorous imprisonment for life. The app.eal of the appellant D
yl,
was already pending in the High ·court against his

- previous conviction u/s.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
E
prosecution. (Para 12] (861-D-F]

2.2. The incidence was a 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. The F
relations between A's husband and the appellant were
strained. It cannot be denied that the appellant 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
G
facing a sentence of life imprisonment, though his appeal
-... 1 ·"
was pending before the High Court. [Para 17] [867-C-E]

2.3. This was not a pre-meditated murder. The
appellant who was on bail, did go to the house of A and
H
850 SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.

A had assaulted the kid. There is no evidence to show
under what circumstance the appella'nt entered the -*
house of A and what prompted him to assault the boy.
,.
'
All the witnesses, who came on the spot, only came
hearing the din created because of the shouting in the
B house of A, but before that, the appellant had already
entered the house. After the neighbours came, all the
neighbours were able to extricate S from the hands of the
appellant. S had suffered some injuries and he was
bleeding and, therefore, A took him to the tubewell. Till -1 -' 4
c then also, the appellant did not assault the twosome. The
--appellant 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 S-PW-6, the anger
0
in the mind of the appellant exploded and he just took the
dao from S, or to put it more correctly, wrested it from his )Ir
hands and then started assaulting the deceased. The
witnesses are silent as to whether A had said anything
E and further, whether there was any exhortation given by
anybody or whether the appellant had any other reason
to act at the spur of the moment Thus, there was no pre-
meditation aspect in the act of the appellant, which was
the reason to act at the spur of the moment. [Para 18]
(867-F-H; 868-A-E]
F -'-
2.4. There was a long standing hatred and enmity
between the family of A, her husband and others in the
neighbourhood, all who were opposed to the appellant
eking out his livelihood by selling the liquor. The
G appellant 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 A and others,
the appellant was bound to nurture deep hatred in his
H mind, as a result of which, he acted. There is also a
HARU GHOSH v. STATE OF WEST BENGAL 851

history that husband of the deceased A had already A
> reported against the appellant that he had cut 75 plants
~
of Banana. The mental state of the appellant can be
imagined. 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 B
/'
against him. As a result of all this, he acted in a sudden
manner and his deep rooted hatred was exploded. This
would not be a case of pre-meditated cold blooded
_ . ~ murder. The cruel manner in which the murder was
committed and the subsequent action on the part of the c
accused in severing the parts of the body of the
deceased, does not by themselves, become the guiding
factor in favour of the death sentence. Accused was

., ~
nurturing the hatred even against, 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. Therefore, the appellant seems to have
D

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
-probably has the feeling of injustice in his being singled E
out. The appellant himself has two minor children, which
has come in the evidence and in the statement of the
appellantlaccused. [Paras 18 and 19] [868-E-H; 869-A-E]
) 2.5. Ordinarily, sentence for imprisonment for life F
would be passed. However, that would be no punishment
to the appellant, as he is already under the shadow of
sentence of imprisonment for life, though he has been
bailed out by the High Court. There is no proposal to send
the appellant for the rest of his life; however, it is observed G
that the life imprisonment in case of the appellant shall
not be less than 35 years of actual jail sentence, meaning
,,
~ thereby, the appellant would have to remain in jail for
minimum 35 years. The death sentence is not confirmed
H
852 SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.

A and instead, would be substituted by the sentence
indicated. [Para 21] [871-C-F]

Bachan Singh v. State of Punjab 1980 (2) SCC 684;
Machhi Singh and Ors. vs. State of Punjab 1983 (3) SCC
B 470; Om Prakash v. State of Haryana 1999 (3) SCC 19;
Santosh Kumar Satishbhushan Bariya vs. State of
Maharashtra JT 2009 7 SC 248; Swamy Shraddananda@
Murty Manohar Mishra vs. State of Kamataka AIR 2008 SC
3040; Alok Nath Dutta vs. State of West Bengal 2006 (10)
Suppl. SCR 662; Mahesh Slo Ram Narain and Ors. vs. State
C of Madhya Pradesh 1987 (3) SCC 80; Sevaka Perumal and.
Ors. vs. State of Tamil Nadu 1991 (3) SCC 471; Jai Kumar
vs. State of Madhya Pradesh 1999 (5) SCC 1; Ramdeo
Chauhan Alias Rajnath Chauhan vs. State of Assam 2007
(7) SCC 455; Suresh and Anr. vs. State of Uttar Pradesh etc.
D 2001 (3) SCC 673; Krishna Mochi and Ors. vs. State of Bihar
etc. 2001 (6) SCC 81; Om Prakash @ Raju vs. State of
Uttaranchal 2003 (1) SCC 648; Gurdev Singh and Anr. vs.
State of Punjab etc. 2003 (7) SCC 258; Praveen Kumar vs.
State of Kamataka 2003 (12) SCC 199; Ho/iram Bordo/ogi
E vs. State of Assam 2005 (3) sec 793; Union of India and
Ors. vs. Devendra Nath Rai 2006 (2) SCC 243; Babu @
Mubarik Hussain vs. State of Rajasthan 2006 (13) SCC 116;
Ram Singh vs. Sonia and Ors. 2007 (3) SCC 1; Shivu Anr.
vs. Registrar General, High Court of Kamataka & Anr-: 2007
F (4) SCC 713; Praj(Jet Kumar Singh vs. State of Bihar 2008
(4) SCC 434; Mohan Anna Chavan vs. State of Maharashtra
2008 (7) sec 561, "referred to. '
Case Law Reference:

G 1980 (2) sec 684 Referred to. Para 12
1983 (3) sec 410 Referred to. Para 12
1999 (3) sec 19 Referred to. Para·12
JT 2009 7 SC 248 Referred to. Para 12,15
H
HARU GHOSH v. STATE OF WEST BENGAL 853

AIR 2008 SC 3040 Referred to. Para 12 A
_),.
2006 (10) Suppl. SCR 662 Referred to. Para 14
1987 (3) sec 80 Referred to. Para 20
1991 (3) sec 471 Referred to. Para 20 B
1999 (5) sec 1 Referred to. Para 20
2001 (7) sec 455 Referred to. Para 20
A
~ 2001 (3) sec 673 Referred to. Para 20
c
2001 (6) sec 81 Referred to. Para 20
2003 (1) sec 648 Referred to. Para 20
'( 2003 (7) sec 258 Referred to. Para 20
2003 (12) SCC199 Referred to. Para 20 D
--.;
2oos (3) sec 793 Referred to. Para 20
2006 (2) sec 243 Referred to. Para 20
2006 (13) sec 116 Referred to. Para 20 E
2001 (3) sec 1 Referred to. Para 20
2001 (4) sec 113 Referred to. Para 20
2008 (4) sec 434 Referred to. Para 20
F
2008 (7) sec 561 Referred to. Para 20
CRIMINAL AP PELLATE JURISDICTION : Criminal Appeal
No. 1173 of 2008.

From the Judgment & Order dated 27.3.2008 of the High G
Court of Calcutta in CRA No. 399 of 2006 with Death
~ Reference Case No. 1 of 2006.
'
Mata Prasad Singh (A.C.) for the Appellant.
H
854 SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.

A Tara Chandra Sharma, Neelam Sharma for the
Respondent. .....

The Judgment of the Court was delivered by

V.S. SIRPURKAR, J. 1. Appellant herein Haru Ghosh has
B . 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 -1 >-

c 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.
)-
D 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
E
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
F 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
G 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
H the nearby tubewell and was pouring water on his face. It further
HARU GHOSH v. STATE OF WEST BENGAL 855
[V.S. SIRPURKAR, J.]

came out that while she was pouring water, at that time one A
,,..
/'
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 B
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. Pr-osecution collected the statements of the c
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
D
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.
E
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 F
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
G
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
H
856 SUPREME COURT REPORTS [2009] 13 (ADDL.} S.C.R.

A turned out that the appellant/accused had cut down about 75 -t, ~,

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
8 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 --i "
Ghosh (PW-6), Adhir Ghosh (PW-8) and his wife Bandana
c 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
D 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
Slo Jeevan Krishna Chakraborty (PW-27) etc. There are some
other witnesses who were examined to corroborate these
E witnesses, who were the eye witnesses. The prosecution also
led the evid.ence 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
F 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
G 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 r- /
on account of offence punishable under Section 307, IPC.
Strangely enough, he was also sentenced to suffer rigorous
i~prisonment for 5 years and to pay Rs.5,000/- and in default,
H
HARU GHOSH v. STATE OF WEST BENGAL 857
[V.S. SIRPURKAR, J.]

>-- to suffer further rigorous imprisonment for 3 months for the A
'!"""'
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.
B
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
191 ~
Krishna Chakraborty. The first group of witnesses Samir Ghosh
(PW-1), Sabitri Ghosh (PW-2), AdhirGhosh (PW-8), Bandana
Ghosh (PW-3), Namita Ghosh (PW-4), Atasi Ghosh (PW- 5) c
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 D
~
the. appellant/accused tried to strangulate Subhankar and how
Anima got injured because of that. They have also described
that thereafter, Subh~nkar 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 E
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 F
(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 G
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 H
858 SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.

~- .,.....
A 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
8 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, -f ""'
shoulders, and right arm by way of injury No. 10. His wrist of
c 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
D 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
E 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
..l...
unfortunate persons but proceeded in the direction of the house
F 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)
G
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
H
HARU GHOSH v. STATE OF WEST BENGAL 859
[V.S. SIRPURKAR, J.]
,#.,
,._
correctness of the findings reached by the Sessions Judge and A
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 B
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 c
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 D
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 E
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 F
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 G
/ ~ 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 H
860 SUPREME COURT REPORTS (2009] 13 (ADDL.) S.C.R.

.....,
A
A 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 t·
and that merely because there were two murders committed
B
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 -1 ..
support his family after him and that also is one of the
considerations.
c
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
---'
D ~
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
E 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-
F 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
G
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
H
HARU GHOSH v. STATE OF WEST BENGAL 861
[V.S. SIRPURKAR, J.]

_..' j>. once again or to marry another woman on account A
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 B
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-a-vis whom the murderer is in a c
dominating position, or a public figure generally
loved and respected by the community."

-- ..J.
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
D
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 E
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
F
circumstances brought about and proved by the prosecution.
This Court in Om Prakash v. State of Haryana reported in 1999
(3) sec 19, while dealing with the accused who had committed
seven murders, observed as under:

"17. Considering the aforesaid background of the G
-;
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 H
862 SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.

A a result ofI human mind going astray because of ~
constant harassment of the family members of the
appellant as nar~ted 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
B 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, --1
that is to say, murders are neither for money such
c 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
41
and kills number of persons; nor is it crime
D
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
E 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 .A.
F agony suffered by him and his family members at
the hands of the other party and for not getting
protection from the poli~ offi~rs.concerned or total
inaction despite repeated written prayers goaded
or compelled the accused to take law in his own
G 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
H circumstances, it cannot be said that he would be
HARU GHOSH v. STATE OF WEST BENGAL 863
[V.S. SIRPURKAR, J.]

~ menace to the society; there is no reason to believe A
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 B
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
c
Lordship then was), and in Swamy Shraddananda@ Murly
Manohar Mishra v. State of Kamataka [AIR 2008 SC 3040]
by Hon'ble Aftab Alam, J.
~

13. In case of Swamy Shraddananda @ Murty Manohar D
~
Mishra v. State of Kamataka (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 E
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
j v. State of Punjab (cited supra) was tested on the backdrop
of the language of Section 354(3) of the Criminal Procedure F
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 G
' "'f 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 H
864 SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.

A classification of cases that the two earl.ier 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
B
murder mainly as an act of maladjusted individual
criminal(s) ........

Then the Court went on to consider the post Machhi Singh -1 \,

situation and commented that:-
c
"........ 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 4!=o-
D the legislature to create special slots for those offences
in the penal code. At the time of Machhi Singh, Delhi had J\.-
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
E
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
F
custodial deaths and rape and fake encounters by Police
or even by armed forces ...........
II
*
The Court then observed:-
".......... These developments would unquestionably find a
G more pronounced reflection in any classification if one were
II
to be made to day ..........
- -r /

The Court, ultimately, observed that:-
11
even though the categories framed in Machhi
..........

H Singh provide very us~ful guidelines, nonetheless those
HARU GHOSH v. STATE OF WEST BENGAL 865
[V.S. SIRPURKAR, J.]

A
)a. cannot be taken as inflexible, absolute or immutable and A
II
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, B
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
c
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 D
;J...
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 E
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. F
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.
G
· 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
H
..

866 SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.

A 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."

B 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.
c 15. In another locus classicus Santosh Kumar
Satishbhushan Bariyar v. State of Maharashtra [JT 2009 (7)
SC 248], Hon'ble Sinha, J. observed:-

"When the court is faced with a capital sentencing case, .......
D ·a comparative analysis of the case before it with other
purportedly similar cases would be in the fitness of ttie ~

scheme of the Constitution. Comparison will presuppose
an identification of a pool of equivalently circumstanced
capital defendants. The gravity, nature and motive relating
E 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 identificat'ion. of
F 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
G 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
H aggravating and mitigating circumstances may vary from
HARU GHOSH v. STATE OF WEST BENGAL 867
[V.S. SIRPURKAR, J.]

~
).- case to case in the name of individualized sentencing, but A
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."
B
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 c
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 D
;ii..
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 E
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.
j
18. As against this, when we start counting the
F
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 G
' ').
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 H
868 SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.

A came, all the neighbours were able to extricate Subhankar from ..( .I
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/
r-
accused did not assault the twosome. In this, we must note that
B 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 mirid
-4 ...
c 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 assa.ulting the deceased. The witnesses are
silent as to whether Anima had said anything and further, I
whether there was any exhortation given by anybody or whether \-
_.-,'-
the appellant/accused had any other reason to act at the spur
D
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
E 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
:);- .
F 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 . I
result of which, he acted. There is also a history that husband
of the deceased Anima had already reported against the
G appellant/accused that he had cut 75 plants of Banana. One can
imagine the mental state of the appellant/accused. He had
-f ::_
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,
H he acted in a sudden manner and his deep rooted hatred was
HARU GHOSH v. STATE OF WEST BENGAL 869
[V.S. SIRPURKAR, J.]
).
exploded. We do not think that this would be a case of pre- A
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 B
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 c
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
D
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 E
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 F
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
G
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:-
H
870 SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.

.A (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) sec 471.
B (iii) Jai Kumar vs. State of Madhya Pradesh reported
in 1999 (5) sec 1.

(iv) Ramdeo Chauhan Alias Rajnath Chauhan vs.
State of Assam reported in 2007 (7) SCC 455
c (v) Suresh & Anr. vs. State of Uttar Pradesh etc.
reported in 2001 (3) sec 673.

(vi) Krishna Mochi & Ors. vs. State of Bihar etc.
reported in 2001 (6) sec 81.
D
(vii) Om Prakash @ Raju vs. State of Uttaranchal
~
reported in 2003 (1) sec 648.

(viii) Gurdev Singh & Anr. vs. State of Punjab etc. :.
reported in 2003 (7) sec 258.
E
(ix) Praveen Kumar vs. State of Kamataka reported in
2003 (12) sec 199.

(x) Holiram Bordologi vs. State of Assam reported in
F 2005 (3) sec 793.

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

(xii) Babu @ Mubarik Hussain vs. State of Rajasthan
G reported in 2006 (13) sec 116.

(xiii) Ram Singh vs. Sonia & Ors. reported in 2007 (3)
sec 1. -i

(xiv) Shivu & Anr. vs. Registrar General, High Court of
H Kamataka & Anr. reported in 2007 (4) SCC 713.
HARLI GHOSH v. STATE OF WEST BENGAL 871
[V.S. SIRPURKAR, J.]

(xv) Prajeet Kumar Singh vs. State of Bihar reported A
in 2008 (4) sec 434.

(xvi) Mohan Anna Chavan vs. State of Maharashtra
reported in 2008 (7) sec 561.
We do not think that we would follow the same course as
8
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 C
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
o

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 E
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 F
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.

N.J. Appeal disposed of. G