RANADHIR BASU v. STATE OF WEST BENGAL

Citation: [2000] 1 S.C.R. 646

Court: Supreme Court of India

Bench: G.T. NANAVATI, S.N. PHUKAN

Judgment text

RANADHIR BASU v. STATE OF WEST BENGAL FEBRUARY 7, 2000 [G. T NANAVATI AND S. N. PHUKAN JJ] Criminal Procedure Code, i'973-Section 306(4)-Examination of approve1~Procadin! ( before the Magistrate before the committal order is made is neither an inquuy nor a triaf-Plea of approver being examined in open court and not in chambe1~Not sustainable--Further presence of accused when approver is examined and giv;ng opportunity to accused to cross-examine approver is not necessary. Indian Penal Code, 1860: Section 302. Death »entence-Accused and 'S' wanted to remove mother of 'S' from this world--}vfother of 'S' was made to eat 'Kalojam' with poison-At 110 point of time accused had planned to kill father and grand-parents of 'S'-Accused killed them out of confusion and ftight that he would be named as the murderer of S'i· mother-On facts it is not a fit case in which death sentence can be regarded as an appropliate prt11fa1iment-TI1us, sentence reduced to !

ife implisonment Words & Phmses-'Examination o; a witness'-Meaning of The appellant-accused arnl one 'K' were tried for committing mur· ders of the parents and grand parents of one 'S' in the Court of Sessions Judge. 'S' was ill treated by her mother. The appellant and 'S' wanted her to be removed from the world. Numerous attempts were made to kill S's mother. The appellant procured poison from one 'K'. On the fateful day 'S's mother was made to eat the 'Kalojam' mixed with poison. Till then there was not even remotest desire on the part of the appellant to kill S's father or her grandparents. The appellant killed them out of the confusion and fright that he would be named as the murderer of S's mother. The police arrested the appellant and 'K' and filed chargesheet against them. Later on 'S' was granted pardon. Then 'S' was examined as approver but RANDHIR BASL' v. STATE 647 not as a witness as contemplated by Section 304(4) of the Criminal ( Procedure Code.

Magistrate examined 'S' in his chamber and not in the ' ' open court and her evidence was also not subjected to cross-examination. Thereafter, the case was committed to the Sessions Court for trial. The Sessions Judge rejected the contention that the trial was vitiated as mandatory requirement of Section 306(4) of the Code were not complied with and after appreciating evidence of the approver, convicted appellant under Sections 302 read with 120-B and 201 of Indian Penal Code and 'K' under Sections 302 read with 109 of the Code, imposing death sentence on both of them. The appellant and 'K' challenged the conviction and sentence in separate appeals. The High Court confirmed the conviction and sen· tence of the appellant but giving benefit of doubt to 'K' acquitted him. Hence this appeal. Partly allowing the appeal, this Court HELD: 1. 1.

Section 306(4) of the Criminal Procedure Code does not mandate that approver must be examined in the open court in the presence of the accused and that the accused must be given opportunity to cross· examine the approver. The object and purpose of examining the person accepting tender of pardon as a witness is thus limited and the proceedings which takes place before the Magistrate at that stage is neither an inquiry nor a trial. (655-E] Suresh Chandra Bahri v. State of Bihar, [1995) Supp. I SCC 80, distinguished. 1. 2. The cross-examination of approve1· was for different reasons adjourned from time to time and the last date fixed. On that day the advocate of the appellant did not remain present and the appellant declined to crossexamine the approver. The lawyer representing co-accused also declined to cross-examine her.

Therefore, it cannot be said that the mandatory requirement ofSection 306(4) was not complied with by examining the approver by the Magistrate in the absence of the appellant and not giving an opportunity to the appellant to cross-examine her. (656-E] 1. 3. The phrase "examination of a witness" does not necessarily mean examination and cross examination of that witness. The type of examination of a witness contemplated would depend upon the object and purpose of the provision. Section 202 of the Code of Criminal Procedure also- · l 648 SUPREME COCRT REPORTS [2CCOJ 1 S. C. R. contemplates examination of witness yet it has been held, considering the object and purpose of that provision, that the accused has no lucus standi '' at the stage of the trial. [655-G] 2. 1. 111e appellant and approver wanted only S\ mother- to be removed from this world. At no point of time the appellant had planned to kill S's father and her grand parents.

S WdS ill-treated by her mo1ier and no other way could be seen for improving her future. It was out of helplessn Ccasions also her mother had noticed the appellant placing his hands on the back of Sudipa and because of that she was beaten by her mother. All these incidents used to be narrated by Sudipa to the appellant. After hearing the last incident in September, 1990 the appellant had told Sudipa that her mother really deserved to be taken to a hill and thrown down from the hill top. (e) In November, 1990 her other teacher Ashutosh Chakraborty was discontinued. Believing that her father had done so at the instance of her mother, Sud1pa became very agitated and complained about it to the appellant. The appdlant took this opportunity to poison her mind by telling her that her mother was not eagc:r to see improvement in her studies and to make her life a success and, therefore, if she wanted to come up in life she should remow her from this world.

(t) During the later half of 1990 tht: appellant had also started telling her about his financial difficulties and with her help he obtained a loan of Rs. 6,000 from her father. When it was not possible for her to get money from her father she used to give him her ornaments like chain, ring etc. without the knowledge of her parents. On one occasion she removed cash from the house and gave it to the appellant. On another occasion she gave Indira Vikas Patra worth Rs. 5,0:)0. Thus towards the end of 1990 Sudipa was under complt:te influence of the appellant and she had started believing that appdlant was the only true friend interested in her welfare. (g) Again when her mother told Sudipa not to appear in the 1991 examination and when Sudipa informed the appellant about it, the appel- ! ant had told her that if she really wanted to remain happy in life she should remove her from the world.

When she had enquired as to how that can be done the appellant had told her to mix 50 tablets of compose with the mt:dicine which her mother was taking every day. Initially, she agreed to that suggestion but could not muster enough courage to do so. In tht: beginning of January, 1991 the appellant tried to persuade Sudipa to givt: RANDHIR BASU v. STAl F :en. ~ANAVATI, J. j 651 some poison to her mother to get rid of her. On 18. 1. 1991 the appellant's wife who had by then become aware of the illicit relationship of the appellant and Sudipa had gone near Sudipa's house and had shouted loudly at the family member~ of Sudipa and opc:nly stated that Sudipa was a bad girl and was having illicit relations with her husband. Sudipa's mother, therefore, had severely beaten her and wanted the appdlant to be removed as a teacher but her father intervened and the appellant continued as Sudipa's teacher..

This incident hdped the appellant in convincing Sudipa that she should not wait any longer and must take immediate steps to remove her mother from this world. This incident also led Sudipa to agree with the suggestion of the appellant to give some poison to her mother. Thereafter there were attempts by appellant and Sudipa to procure poison ·. and get their effects tested. Initially some cyanide and mercury chloride were obtained from Krishnanendu and experiments were conducted with the help of Krishnanendu. The appellant had also given one bottle of water in which lizards were boiled to Sudipa and had instructed her to mix it in the drinking wakr of her mother as such water was abo considered highly poisonous. The attempts to procure poison and get them tested continued till 16. 3. 1991. On 16. 3. 1991 it was decided mix poison with 'kalojams' and give them to other mother.

For this purpose 'kalojams' were also purchastd but Sudipa could not make up her mind and that attempt of the appellant failed. On 18. 3. 1991 the appellant told Sudipa to make her mind strong if she really wanted to prosper in life. He again went to her house in the evening and told her that after administering poison to her mother an electric wire should be wrapped around her body so that people would believe that she had committed suicide. When Sudipa refused to do such a thing the appellant became angry and told her that there was no other way to get rid of her mother. So, Sudipa kept all the articles brought by the appdlant in the house and concealed them. On 20. 3. 1991 Sudipa and appellant moved together from 10 A. M. till about 4. 15 P. M. Sudipa then went home and the appellant followed her at about 6. 30 P. M. The appellant told Sudipa that she should make her mind strong and do whatever was required to be done otherwise she would suffer for the rest of her life.

He even thn:atened her that if she did not do what was suggested to her then he would remain away from her. The appellant then gave her a packet of sweets containing 'kalojams' and 'sitabhog' and told her to mix poison with two 'kalojams'. Sudipa mixed some quantity of sodium cyanide with two 'kalojams' and returned them to the appellant. The appellant then waited for the mother of Sudipa to come upstairs. By that time the appellant had assured that the grand mother and grand father of Sudipa were on the ground floor and the father of Sudipa had gone out. At about 8. 20 P. M. Sudipa's mother went on the first floor and entt:red the bed room where the appellant and Sudipa were sitting. The appellant told her that as promised earlier he had brought sweets for her and so saying placed one 'kalojams' in the hand of Sudipa's mother. Sudipa could not bear this sight and went out of the room. At that time Sudipa's father was seen coming upstairs.

She immediately wi:nt back to the bed room and told the appellant about it. The appellant then picked up one 'kalojam' and one 'sita-bhog' and told her to give those sweets to her father. Sudipa then went to her father's room and placed them on the table. She then went downstairs to find out what her grand mother and grand father were doing. After finding them there she again went upstairs and when she peeped into her father's room she saw that her father had eaten those sweets and was gasping for breath. Seeing the precarious condition of her father she rushed to the appellant and told him about it. She again went to her father's room and seeing that her father was almost collapsing asked the appellant as to why he had killed her father. The appellant told her that as her father had seen him giving 'Kalojam' to her mother and would have named him as the person who had given poisoned i;weet, he was also required to be finished.

He then asked her to follow his instructions and warned her that if she did not do so her death was also inevitable. Sudipa had become highly perplexed and did what the appellant had told her to do. Seeing the grand parents coming up the appellant asked Sudipa to leave the house immedi- t ately. When the grand mother reached the first floor the appellant gave her one 'Kalojam' and when she asked for water the appellant gave her water mixed with mercury chloride. Sudipa returned at about 9. 30 P. M. When she enquired as to where her grand father was the appellant told her that the grand father had also suffered the same fate as others. The appellant then told her to follow his instructions and threatened her that if she did not do so all the people would blame her for the murders of those persons. Thereafter an attempt was made by both of them to conceal or destroy the articles used for killing the four persons and wash off finger prints of the appellant.

The appellant th iatemcnl we find that she had givc;n full and correct v1. :rsion of the incident. Her evidence before the Court was also consistent. Both the courb below were, therefore, justified in accepting her evidence and recording the conviction of the appellant. 9. One more submission made by Mr. Muralidhar for not accepting her evidence was that her evidence against Krishnanendu has not been believed by the High Court and that would imply that she had not told the truth. We could have appreciated this submission if the High Court had rejected her evidence against Krishnanendu on the ground that it was false or of doubtful nature. The High Court did not accept her evidence because it was of the view that it was unsafe to rely upon it in absence of independent corroboration. Therefore, non-acceptance of her against Krish- nanendu does not, in our opinion, introduce any infirmity in her evidence ~ / or create any doubt regarding her reliability as a witness. 10.

It was lastly contended by Mr. Muralidhar that the courts below were not justified in imposing death senttnce upon the appdlant. The High Court has confirmed the death sentence on the ground that the appellant committed four murders 'with the design of avarice'', The High Court further observed that the murders were committed in a cruel and calculated manner and they were committed with siniskr design. What appears to have been overlooked by tht courts below is that the appellant and Sudipa wanted only Sudipa's mother to be removed from this world. At no point of time the appellant had planned to kill Sudipa's father and her grand parents. Sudipa was ill-treated by her mother and no other way could be seen for improving Sudipa's future. It was, therefore, out of helplessness and frustration that Sudipa and appellant had decided to remove her. There was no other reason.

Till Sudipa's mother was made to eat the 'kalojam' mixed with poison there was not even the remotest desire on the part of the appellant to kill Sudipa's father or her grand parents. The subsequent events happened unexpecttdly. The appellant kilkd them out of confusion and fright that he would be named as the murderer of Sudipa's mother. If all these circumstances would have been taken into consideration probably the trial Court would not have imposed the death sentence upon the appellant and the High Court would not have confirmed the same. Considering the facts and circumstances of the case. we are of lht view that this is not a fit case in which the death sentence can be regardt·. d as an appropriate punishment. 11. We, thtrefore, partly allow this appeal. We confirm the conviction of the appellant for causing deaths of all the four victims, but reduce the sentence of death to the sentence of imprisonmtnt for lifo. NJ. App. :al partly allowed.