KUNAL MAJUMDARversusSTATE OF RAJASTHAN

                           [2012] 8 S.C.R. 706


    A                      KUNAL MAJUMDAR
                                    v.
                         STATE OF RAJASTHAN
                    (Criminal Appeal No. 407 of 2008)

                         SEPTEMBER 12, 2012
 B
             [DR. 8.5. CHAUHAN AND FAKKIR MOHAMED
                       IBRAHIM KALIFULLA, JJ.]

        Code of Criminal Procedure, 1973 - s. 366(1) - Death
C reference - Manner in which to be dealt with - Held: High
   Court is bound to examine the death reference with particular
   reference to ss. 367 and 371 Cr.P.C. - High Court cannot
   short-circuit the process of reference by merely relying upon
   any concession made by the counsel for the convict or that
D of the State - In the instant case, the High Court dealt with
  the reference in a very casual and callous manner and did
  not exercise its jurisdiction vested in it u/s. 36fi(1) - Matter
  remitted to High Court to decide the reference in the manner
  it ought to have been decided.
E
       The appellant-accused was convicted by trial court
  for the offences ulss.302 and 3761511 and was sentenced
  to death with fine for the offence uls. 302 IPC and was
  sentenced to 7 years RI with fine for the offences ulss.
  3761511 IPC. The case was referred uls. 366 Cr.P .C. for
F confirmation of death sentence.

       The High Court while dealing with the reference,
  alongwith the appeal, confirmed the conviction but
  altered the death sentence to life imprisonment uls. 302
G IPC while maintaining the sentence ulss. 3761511 IPC.
  Hence the present appeal.

            Disposing of the appeal and remitting the matter to
        High Court, the Court
H                                706
      KUNAL MAJUMDAR v. STATE OF RAJASTHAN                   707

i         HELD: 1. In a case for consideration for confirmation A
    of death sentence under Section 366 (1) Cr.P.C., the High
    Court is bound to examine the Reference with particular
    reference to the provisions contained in Sections 367 to
    371 Cr.P.C. In a Reference made u/s. 366 (1) Cr.P.C., there
    is no question of the High Court short-circuiting the B
    process of Reference by merely relying upon any
    concession made by the counsel for the convict or
    counsel for the State. A duty is cast upon the High Court
    to examine the nature and the manner in which the
    offence was committed, the mens rea if any, of the culprit, c
    the plight of the victim as noted by the trial Court, the
     diabolic manner in which the offence was alleged to have
     been performed, the ill-effects it had on the victim as well
     as the society at large, the mindset of the culprit vis-a-vis
     the public interest, the conduct of the convict immediately
                                                                   0
     after the commission of the offence and thereafter, the
     past history of the culprit, the magnitude of the crime and
     also the consequences it had on the dependants or the
     custodians of the victim. There should be very wide range
     of consideration to be made by the High Court dealing
     with the Reference in order to ensure that the ultimate E
      outcome of the Reference would instill confidence in the
     minds of peace loving citizens and also achieve the
      object of acting as a deterrent for others from indulging
      in such crimes. [Paras 15 and 17] [715-F; 717-C-F]
                                                                      F
          2. In the impugned order, the Division Bench of the
     High Court merely recorded to the effect that the counsel
     for the appellant pleaded for sympathy to commute the
     death sentence into one for life for the offence falling u/
     s. 302 IPC while praying for maintaining the sentence            G
     imposed for the offence u/ss. 376/511 IPC and that there
     was no opposition from the Public Prosecutor. The
     Division Bench of the High Court did not bother to
      exercise its jurisdiction vested in it u/s. 366(1) Cr.P.C. rt
                                                                      H
     708      SUPREME COURT REPORTS                 [2012] 8 S.C.R.


 A w. Sections 368 to 370 and 392, Cr.P.C. in letter and spirit
   and thereby, shirked its responsibility while deciding the
   Reference in the manner it ought to have been otherwise
   decided under Cr.P.C. [Para 16] [716-E-H; 717-A-B]

 B     3. If the matter is considered on merits by this Court,
   it would only result in dealing with the issue in such a
  manner which in the normal course should have been
  considered and examined by the Division Bench of High
  Court while dealing with the Reference u/s. 366 (1) Cr.P.C.
  Since the said exercise ought to have been carried out
C by the Division Bench while dealing with a Reference
  along with the appeal preferred by the appellant, in fitness
  of things the, Division Bench is allowed to carry out that
  exercise as ordained upon it. Therefore, the judgment
  impugned in this appeal is set aside and the matter is
D remitted back to the High Court for deciding the
  Reference u/s. 366 Cr.P.C. in the manner it ought to have
  been decided. [Paras 18 and 19] [717-H; 718-A-B, D-E]

      CRIMINAL AP PELLATE JURISDICTION : Criminal Appeal
E No. 407 of 2008.

         From the Judgment & Order dated 11.7.2007 of the High
     Court of Judicature for Rajasthan at Jodhpur in DB Cri. Appeal
     No. 243 of 2007.

F        R.K. Das, Suchit Mohanty, Anshuman Patnaik, Anupam Lal
     Das for the Appellant.

         Sonia Mathur, Milind Kumar for the Respondent.

         The Judgment of the Court was delivered by
G
         FAKKIR MOHAMED IBRAHIM KALIFULLA, J.

       1. This appeal at the instance of the sole accused is
  directed against the judgment of the Division Bench of the High
H Court of Rajasthan at Jodhpur dated 11.7.2007 in Criminal
   KUNAL MAJUMDAR v. STATE OF RAJASTHAN                 709
    [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
Murder Reference under Section 366(1 }, Cr.P.C. along with    A
Criminal Appeal No.1/2007 as well as Criminal Appeal No.243
of 2007 and Jail Appeal No.313 of 2007 under Section 374(2)
Cr.P.C. against the judgment and conviction dated 09.3.2007
passed by learned Additional Sessions Judge (Fast Track)
No.1, Jodhpur in Sessions Case No.2 of 2006. The appellant     B
was proceeded against for charges under Sections 376 and
302, IPC.

       2. According to the prosecution, on 18.1.2006, a complaint
 (Exhibit P-6) was preferred by one Laltu Manjhi before the SHO, C
 police station Shastri Nagar, Jodhpur wherein it was alleged
 that his daughter Bharti (the deceased) was employed as a
 housemaid in the residence of the appellant and that 25 days
 prior to the date of complaint, one Sudip De, through whom his
 daughter came to be employed with the appellant, informed him
 over phone that his daughter wanted to speak to him, that when D
  he talked to his daughter, he could sense the plight of his
  daughter in the residence of the appellant, that though his
. daughter wanted to explain her ordeal at the instance of the
  appellant, she was prevented from talking to him in detail and
  that on the morning of 16.1.2006 at about 5 O' clock, he E
  received an information through Sudip De that the appellant
  informed him over phone that his daughter fell unconscious due
  to Vertigo and was admitted to hospital. On such information,
  when the father of the deceased reached Jodhpur, the appellant
  informed him through Sudip De that his daughter was dead and F
  that he could only see the body of his daughter in the Mortuary
  of the M.G.Hospital on 18.01.2006 where he noted the injuries
  all over the body of his daughter. According to him, he received
  information through the neighbours of the appellant that the
  appellant was constantly torturing the deceased during the G
   preceding two months during which period she was employed
   at the house of the appellant apart from his immoral behaviour
   towards his daughter. It was his furt.her allegation that his
                                     by
   daughter was killed by the appellant     strangulation.
                                                                  H
        710     SUPREME COURT REPORTS                 [2012] 8 S.C.R.


    A        3. Based on the above report, the case was registered as
        Crime No.31 of 2006 and after investigation, the final report
        came to be filed pursuant to which charges were leveled
        against the appellant for offences under Sections 302 and 376,
        IPC.
 B
        4. Before the trial Court, PWs-1 to 17 were examined in
   support of the prosecution apart from Exhibits P-1 to P-20. On
   the 313 questioning, the appellant denied the offences alleged
   against him. According to him, he did not commit rape on the
   deceased, that the deceased was a patient of Epilepsy and
C on the date of incident, she developed the fit of Epilepsy due
   to which she developed breathlessness, became restless and,
  thereafter, fell down due to which she sustained injuries, that in .
  order to give artificial respiration, the appellant and his wife took
  efforts to open her teeth to pour water and subsequently took
D her to the hospital in a three wheeler taxi where she was
  declared dead. It was further stated by the appellant that he
  intimated the parents of the deceased, that tht;l complaint was
  false and he was innocent.

E       5. One factor which is relevant to be noted at the very
  outset is that as per the post mortem report, there were as
  many as 27 injuries almost on all parts of the body of the
  deceased and, in particular, injury Nos.19, 20 and 21 which were
  in the private parts of the deceased. The doctor who conducted
F the post mortem, namely, PW-9, in the post mortem report
  specifically mentioned to the effect- 'on dissection of neck -
  ante mortem reddish coloured haematoma present on Lt. side
  neck underneath the skin & in underlying soft tissues. On
  further examination, patchy antemortem reddish dark
G haematoma present below epiglottis on both sides & a/so in
  soft tissues at upper part of trachea. Hyoid bone, thyroid &
  corticord cartilages found intact, mucosa of trachea also
  congested in upper half. Opinion: Cause of death is ante-
  mortem injuries to necl(which are sufficient to cause death.

H
  KUNAL MAJUMDAR v. STATE OF RAJASTHAN                     711
   [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
     6. The further report of the doctor was that there was A
pressure above the Larynx Trachea of the deceased. In the
further report under Exhibits P-14 and P-15, it was noted that
many sections in trachea cut and congestion of vessels were
found apart from haemorrhage at many places and acute
inflammatory infiltrate was present. PW-9 further noted that B
there was pressure on the layering trachea of the deceased and
the injuries were inflicted. PW-9 was the doctor who was a
member of the medical board constituted by the Superintendent
 of Gandhi Hospital Jodhpur who conducted the post-mortem
 on the body of the deceased.                                  c
     7. PW-9 in his evidence stated as under:

            "Ante mortem reddish coloured haematoma present
     on left side of neck underneath the skin and in underling
     soft tissues. On further examination patchy ante mortem       D
     reddish dark coloured haematoma present below
     epiglottis on both sides and also in soft tissues at upper
     part of trachea. Hyoid bone, Thyroid and Cricoid cartilages
     found intact. Mucosa of trachea also congested in upper
     half.                                                         E

            After internal examination of the dead body it was
     found that there was sub sculp haematoma in area of 2 x
     2 centimetres dark reddish in colour on left frontal region
     and 3 x 2 centimetres dark reddish on left occipital region
     near underline. Brain, both lungs, lever, spleen and kidney
                                                                   F
     were found congested. Membrane of abdomen was
     yellowish and abdomen contained about 100 m.I. yellowish
     fluid. On examination of sexual organ-the hymen showed
     old healed tears and the vaginal orifice admitted two
     fingers easily. The uterus was found small in size and        G
      healthy and empty."

     8. The trial Court based on the medical evidence stated
 as under:
                                                                   H
    712        SUPREME COURT REPORTS                   [2012] 8 S.C.R.


A               "Here it is worth mentioning that injury No.14 caused
          to the deceased has come in the portion opposite the
          chest, in the middle portion and on the right side and in
          the above said injury No.14, many scratches between 2 x
          2 ems to 4 x 2 cm being there has been mentioned.
B
                 Similarly the injuries No.15, 19, 20, 21, 25, 26
          respectively caused to the deceased in the portion below
          the chest of the deceased, above the left nipple, towards
          four sides of the left nipple, in circular shape, on the right
          side, on the side portion of the chest, in one third portion,
c         on the neval has appeared in the form of multiple
          scratches.

            All the above said injuries probably are not possible
      to be sustained during the course of getting restlessness
D     in the attack of Epilepsy.

                xxx xxx xxx xxx xxx
             From the evidence of PW-9, Dr. P.C. Vyas, it is
       proved in clear manner that the cause of death of the
E     deceased was the injury that came on the internal part of
       her neck and the above injury was sustained as a result
      of an external pressure. Hence it is clear that the death of
      the deceased was due to strangulation on account of injury
      caused on the neck and above said injury was sufficient
F     to cause death. The confirmation of the above statement
      of PW-9 of Dr. P.C. Vyas in the context of the internal parts
      of the neck is done from the Histo Pathology report Ex.P-
      14 also. In the internal Larynx and in the Trachea protion
      abraided wounds have been found.
G
            Hence from the singular evidence of PW-9, Dr.P.C.
      Vyas this fact is proved beyond doubt that the death of
      deceased Kumari Bharti was not due to suffocation of
      breath as result of fit of epilepsy. No possibilities have
      appeared about sustaining above said 27 injuries during
H
   KUNAL MAJUMDAR v. STATE OF RAJASTHAN                    713
    [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
    the course of attack of Epilepsy of the deceased."             A

                                            (emphasis added)

     9. After detailed analysis of the evidence, the trial Court
concluded that the appellant was guilty of the charges falling
under Sections 302, 376/511 IPC. On the question of sentence,      B
after hearing the appellant as well as the learned Public
Prosecutor and after referring to the various decisions of this
Court regarding the principles to be applied for imposing the
capital punishment, ultimately held as under:
                                                                   c
              "This position is proved from the evidence clearly
     that the accused Kumari Bharti was a minor girl of 14 years
     and this position is also proved from the evidence that the
     father of the girl PW-3 Laltu Manjhi had sent her from West
     Bengal to the residential place located at Vyas Colony in D
     Jodhpur, the above said girl as maid servant, for working
      at the place of the accused. Laltu Manjhi, father of the
      deceased has relations with an extremely poor family and
      he due to his financial circumstances by having trust on the
      accused that he will maintain his daughter as his own
                                                                   E
      daughter, sent her from West Bengal to such a distance
      in Rajasthan. Accused Kuna! Majumdar at the time of the
      incident was working in Air Force Station Jodhpur. The
      accused being the guardian, had done extremely
      inhuman act with her and during the course of committing F
       the rape with deceased Bharti, inflicted total 27 injuries
       on different parts of her body and thereafter by
       strangulating her throat, committed her murder. The
       accused on the private physical parts of the deceased
       i.e. on both of breast, inflicted injuries, along with that
       close to the breast also of the deceased, inflicted many G
       physical injuries. In this way the accused, with the minor
        girl who was unable to object herself, committed this type
        ofill act with her."

                                              (emphasis added)         H
     714      SUPREME COURT REPORTS                  [2012] 8 S.C.R.

 A       10. The trial Court, therefore, imposed the punishment of
    death sentence apart from a fine of Rs.5,000/- for the offence
   found proved under Section 302, IPC and sentence of seven
   years' RI and Rs.25,000/- fine for the offence under Sections
   376/511 IPC and in default of payment of fine, to undergo two
 B more years of imprisonment. Since death sentence was
   imposed, the case was referred for confirmation under Section
   366 (1) Cr.P.C. to the High Court and ordered to await for the
   confirmation of the High Court before its execution.

          11. We heard Mr. RK. Das, learned senior counsel for the
 C appellant and learned counsel for the State. We have also
     perused the written submissions filed on behalf of the appellant.
     For the reasons stated herein, we do not find any scope to
     consider the submissions of the learned senior counsel for the
     appellant on the merits of the case. Having perused the
D judgment of the trial Court, when we examine the judgment of
    the High Court, we are shocked to note,that the case of
    Reference of death sentence for confirmation was dealt with
    by Division Bench of the High Court of Rajasthan at Jodhpur
    in a casual and callous manner by merely stating that the
E counsel for the appellant prayed for sympathetic consideration
   in commuting the death sentence into sentence for life and
   there being no serious support from the Public Prosecutor of
   the State and the injuries sustained resulting into death did not
   suggest use of severe force in order to conclude the same as
F one of brutal and inhuman, the death sentence can be altered
   as one for life imprisonment under Section 302, IPC while
   maintaining the sentence awarded for Offences under Sections
   376 read with 511 IPC.

       12. By filing this appeal against the said judgment of the
G High Court, the learned Counsel for the appellant submitted that
             ' available on record does not call for conviction
  the evidence
  and consequently the sentences imposed cannot be sustained.

       13. We also heard learned counsel for the State as to the
H correctness of the judgment of the Division Bench of the High
   KUNAL MAJUMDAR v. STATE OF RAJASTHAN                     715
    [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
Court. The respective counsel were not in a position to make A
submission as to the correctness or otherwise of the judgment
of the Division Bench inasmuch as there was absolutely no
consideration of the relative merits and demerits of the
conviction and the sentence imposed in the Reference under
Section 366 (1), Cr.P.C. in the manner in which it was required B
to be considered.

      14. If the submissions of learned counsel for the appellant
were to be considered in detail, that would, on the face of it,
conflict with the stand of the appellant himself before the Division C
Bench of the High Court, where it has been recorded that the
counsel who represented on behalf of the appellant stated to
have made only one submission to the effect that the Court may
sympathetically consider the case of the appellant for
commuting the death sentence into the sentence for life and that
no seriousness was attached to the sentences passed for D
offence under Sections 376/511, IPC while praying for life
imprisonment for the principal offence. Even assuming such a
statement stated to have been made on behalf of the appellant
as recorded in the impugned judgment can be taken to be true
for its face value, we are at a loss to understand as to how the E
learned Public Prosecutor could have submitted that the Court
may consider the case of the appellant sympathetically as
recorded by the Division Bench in the order impugned herein.

      15. In a case for consideration for confirmation of death F
 sentence under Section 366 (1) Cr.P.C., the High Court is
 bound to examine the Reference with particular reference to the
 provisions contained in Sections 367 to 371 Cr.P.C. Under
 Section 367, Cr.P.C., when Reference is submitted before the
 High Court, the High Court, if satisfied that a further enquiry G
 should be made or additional evidence should be taken upon,
 any point bearing upon the guilt or innocence of the convict
 person, it can make such enquiry or take such evidence itself
 or direct it to be made or taken by the Court of Sessions. The
 ancillary powers as regards the presence of the accusecj in
                                                             '   H
     716      SUPREME COURT REPORTS                 [2012] 8 S.C.R.


A such circumstances have been provided under sub-Clauses (2)
    and (3) of Section 367, Cr.P.C. Under Section 368, while
   dealing with the Reference under Section 366, it inter alia
   provides for confirmation of the sentence or pass any other
   sentence warranted by law or may annul the conviction itself and
B in its place convict the accused for any other offence of which
   the Court of Sessions might have convicted the accused or
   order for a new trial on the same or an amended charge. It may
   also acquit the accused person. Under Section 370, when such
   Reference is heard by Bench of Judges and if they are divided
c in their opinion, the case should be decided in the manner
  provided under Section 392 as per which the case should be
  laid before another Judge of that Court who should deliver his
  opinion and the judgment or order should follow that opinion.
  Here again, under the proviso to Section 392, it is stipulated
  that if one of the Judges constituting the Bench or where the
0
  appeal is laid before another Judge, either of them, if so
  required, direct for rehearing of the appeal for a decision to be
  rendered by a larger Bench of Judges.

         16. When such a special and onerous responsibility has
E been imposed on the High Court while dealing with a
   Reference under Section 366 (1), Cr.P.C., we are shocked to
   note that in the order impugned herein, the Division Bench
   merely recorded to the effect that the counsel for the appellant
   pleaded for sympathy to commute the death sentence into one
F for life for the offence falling under Section 302, IPC while
   praying for maintaining the sentence imposed for the offence
   under Sections 376/511, IPC and that there was no opposition
  from the learned Public Prosecutor. The Division Bench on that
  sole ground and by merely stating that there was no use of force
G of severe nature on the victim at the hands of the appellant and
  that the commission of offence of murder cannot be held to be
  brutal or inhuman and consequently the death sentence was
  liable to be altered as one for life for the offence under Section
  302, IPC. The Division Bench of the High Court did not bother
H to exercise its jurisdiction vested in it under Section 366(1)
   KUNAL MAJUMDAR v. STATE OF RAJASTHAN                     717
    [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
Cr.P.C. read with Sections 368 to 370 and 392, Cr.P.C. in A
letter and spirit and thereby, in our opinion, shirked its
responsibility while deciding the Reference in the manner it
ought to have been otherwise decided under the Code of
Criminal Procedure. We feel that less said is better while
commenting upon the cursory manner in which the judgment B
came to be pronounced by the Division Bench while dealing
 with the Reference under Section 366 (1) while passing the
 impugned judgment.

       17. We are, however, duty bound to state.and record that
in a Reference made under Section 366 (1) Cr.P.C., there is C
no question of the High Court short-circuiting the process of
 Reference by merely relying upon any concession made by the
counsel for the convict or that of counsel for the State. A duty
 is cast upon the High Court to examine the nature and the
 manner in which the .offence was committed, the mens rea if D
 any, of the culprit, the plight of the victim as noted by the trial
 Court, the diabolic manner in which the offence was alleged to
  have been performed, the ill-effects it had on the victim as well
  as the society at large, the mindset of the culprit vis-a-vis the
  public interest, the conduct of the convict immediately after the E
  commission of the offence and thereafter, the past history of
  the culprit, the magnitude of the crime and also the
  consequences it had on the dependants or the custodians of
  the victim. There should be very wide range of consideration
  to be made by the High Court dealing with the Reference in F
   order to ensure that the ultimate outcome of the Reference would
   instill confidence in the minds of peace loving citizens and also
  achieve the object of acting as a deterrent for others from
   indulging in such crimes.
                                                                      G
          18. It is unfortunate that the Division Bench of the High
    Court of Rajasthan was oblivious of the above vital factors while
    disposing of the Reference in such a cursory manner. It will
    have to be stated that if the submissions of the counsel for the
    appellant before us are to be considered on merits, they would
                                                                     H
     718     SUPREME COURT REPORTS                 [2012) 8 S.C.R.

A only result in dealing with the issue in such a manner which in
   the normal course should have been considered and examined
   by the Division Bench while dealing with the Reference under
   Section 366 (1). Since the said exercise ought to have been
  carried out by the Division Bench while dealing with a
B Reference along with the appeal preferred by the appellant, in
  fitness of things the Division Bench is allowed to carry out that
  exercise as ordained upon it. To emphasize upon the duty cast
  upon the Division Bench in such cases of Reference, we
  reiterate that resorting to any such shortcut course would reflect
c very badly upon the concerned Court.
        19. We are convinced that it is the bounden duty of the
   Division Bench to carry out such exercise in the manner set out
   above and we feel it appropriate, therefore, to set aside the
  judgment impugned in this appeal for that reason and remit the
D matter back to the High Court for deciding the Reference under
  Section 366 Cr.P.C. in the manner it ought to have been
  decided. Inasmuch as the conviction and sentence imposed on
  the appellant was by the judgment dated 09.03.2007 of the trial
  Court and the offence alleged was dated 16.01.2006, while
E remitting the matter back to the High Court, we direct the High
  Court to dispose of the Reference along with the Appeals
  expeditiously and in any case within three months from the date
  of receipt of the records sent back to the High Court. The
  appeal stands disposed of with the above directions to the High
F Court.

   K.K.T.                                   Appeal disposed of.