Mathur Lohar, Appellant V. The State, Respondent.
DATE : 28-05-1985
1986-(092)-CRLJ -0877 -CAL
JUDGE(S) :
Manoj Kumar Mukherjee
Sankar Bhattacharyya
CALCUTTA HIGH COURT
JUDGMENT
SANKAR BHATTACHARYYA, J. :- Mathur Lohar, the appellant before
us, has been convicted by the learned Sessions Judge, Bankura
under Section 302, Indian Penal Code on two counts for having
committed murder of his daughter-in-law Parul Lohar and his brother
Laben Lohar and sentenced to death. This appeal by the appellant
from jail seeks to challenge the above order of conviction and
sentence. Along with the appeal we have also heard the statutory
reference made by the learned Sessions Judge under Section 366(i),
Criminal Procedure Code for confirmation of the sentence of death
awarded by him.
Prosecution case, in a nutshell, is as follows :
Deceased Parul Lohar was married to Lakshmi Kanta Lohar (P.W.
2), son of the appellant, about four years before her murder.
The marriage was negotiated and settled by deceased Laben Lohar,
brother of the appellant, despite his objections. After the marriage
Parul started living with her husband Lakshmi Kanta in the house
of the appellant in village Sonajhore within the police station
of Taldangra. There were, however, frequent quarrels between her
and the appellant and during the quarrels she received the support
of her uncle-in-law Laben. As a result of this, she and her husband
became separate in mess from the appellant about a fortnight before
she was murdered. The houses of the appellant and his brother
Laben are situated close to one another with a common courtyard.
2. On April 24, 1982, corresponding to Baisakh 10, 1389 B.S. deceased
Laben and his wife Promila (P.W. 1) returned home in the evening
after their day's work. While Laben lay down in the courtyard
for rest, Promila went inside her house to feed her child and
fell asleep. At or about 10 p.m. she was roused by the screams
of Parul and coming out of her room found the appellant dragging
Parul across the courtyard by holding her hairs. At that time
the appellant had a katari in his hand and he threw down Parul
on the courtyard near his feet. Pramila at once raised an alarm,
hearing which, the appellant went out of the house and stood there.
When, however, the neighbours started coming to the house hearing
the row, he ran away from the house with the Katari. The neighbours
and the inmates of the house found both Parul and Laben lying
dead on the courtyard with gaping wounds on their throats.
3. Hearing about the incident from some villagers Satyabrata Mandal
(P.W. 5), the Prodhan of the Saltora Gram Panchayat, sent a written
report (Ext. 3) to the Amdangra Police Out-Post which was forwarded
to the Taldangra police station. The written report was treated
as the first information report and on the basis of it, Taldangra
Police Station Case No. 5 dated 25-4-82 under Section 302, Indian
Penal Code was registered against the appellant.
4. Sub-Inspector Khanra (P.W. 10), the then Officer-in-charge
of the Taldangra police station, took up investigation of the
case. He came to the village of occurrence, held inquest over
the dead bodies of Parul and Laben, seized their blood stained
wearing apparels and sent the dead bodies to the morgue for post
mortem examination. Thereafter, he drew up a sketch map with index,
seized some blood-stained earth and control earth from the courtyard
and examined some witnesses. He also searched for the appellant
but could not trace him out.
5. On the same night, at or about 1 a.m. Kamal Lohar (P.W. 11)
of village Garadihi on returning home from a party meeting found
a man sleeping on the ledge of his house. Since he could not recognise
the man due to darkness, he went inside the house and learnt from
his second wife that the man sleeping outside was brother-in-law
Mathur (husband of the sister of his first wife who was dead).
He then aroused Mathur from sleep and in the light of the burning
lantern found a katari with him. Mathur (appellant) told him at
that time that he had murdered Parul and Laben. Kamal then went
inside the house and asked his second wife to serve meals to both
of them as the appellant was his relative. When the meals were
ready, he came out to call the appellant but could not find him.
6. On 26-4-82, just before evening, Biswanath (P.W. 10) of Sonajhore
found the appellant drinking water from a tank called Chinarbandh
about one kilometre off from the village. As Biswanath was alone
he did not dare apprehend the appellant. So he came back to the
village and, along with Tushar (P.W. 8), Nagen (P.W. 9) and several
others, returned to the spot. Reaching there they found the appellant
sitting inside a bush near the tank. At their sight the appellant
tried to escape but he was surrounded and apprehended by them.
After his apprehension he confessed that he had murdered his daughter-in-law
Parul and his brother Laben as they were frequently quarreling
with him and disturbing the peace of the family. The police were
informed about the apprehension and the Investigation Officer
came to the spot and took him into custody. After his arrest,
he led the Investigating Officer to the house of Kamal Lohar (P.W.
11) of Garadihi and brought out a Katari from inside a room of
the house. The katari was seized and sent to the Forensic Science
Laboratory for chemical examination and report. On completion
of the investigation the police submitted charge-sheet against
the appellant which, in usual course, ended in committal of the
case to the court of session.
7. The defence of the appellant was that he was completely innocent
and had been falsely implicated in the case.
8. To prove its case the prosecution examined twenty two witnesses,
while the defence examined none.
9. The murders of Parul and Laben are not challenged by the defence.
Immediately after the occurrence, the inmates of the houses namely,
Pramila (P.W. 1) Lakshmi Kanta, (P.W. 2) and Badli (P.W. 3) found
Parul and Laben lying dead on the courtyard of the house with
bleeding injuries on their throats. Subal (P.W. 4), Satyabrata
(P.W. 5), Krishna (P.W. 6), Kanai (P.W. 7) and Nagen (P.W. 9)
who are neighbours of the appellant and came to his house hearing
the row also found Parul and Laben lying dead on the courtyard
of their house with gaping wounds on their throats.
10. Dr. Nag Biswas (P.W. 17), the then Medical Officer of the
Bishnupur Sub-Divisional Hospital, held post-mortem examination
of the dead bodies of Parul and Laben. His evidence indicates
that he found one gaping deep wound 3" x 1/2" x bone
deep on the right side of Parul's neck. The 3rd cervical vertebra
was also found cut.
On examination of the dead body of Laben he found one gaping deep
wound on the neck 5" x 2" x 2". The head of the
victim was almost detached from the neck and the 5th cervical
vertebra was found cut. In the opinion of Dr. Nag Biswas, the
victims died due to shock and heamorrhage as a result of the injuries
sustained by them which were ante mortem and homicidal in nature.
The katari (Ext. VI) brought out by the appellant from the house
of Kamal Lohar (P.W. 11) was shown to Dr. Nag Biswas for his opinion
whether the injuries found on the victims could be caused by such
katari and his reply was that they might be so caused. There was
no cross-examination by the defence as to the nature of the injuries
and the type of weapon used in inflicting those injuries. The
evidence discussed above, therefore, clearly establishes the prosecution
case that both the victims were brutally murdered.
11. The next question - and the most crucial one - is whether
the appellant committed the murders of Parul and Laben. In the
absence of any eye witness to the murders, the prosecution relied
upon circumstantial evidence to prove its case. The circumstances
relied upon by the prosecution are set out below :
1) According to the prosecution, the frequent quarrels between
Parul and the appellant and the support given by Laben to Parul
during the quarrels constituted the motive for the murders.
2) On the night of occurrence Pramila (P.W. 1) widow of deceased
Laben, woke up from sleep at or about 10 p.m. being attracted
by the screams of Parul and found the appellant dragging her across
the courtyard by holding her heirs and throwing her down on the
courtyard near his feet.
3) The appellant was found with a katari in his hand at that time.
4) The appellant ran away from the house immediately after the
occurrence.
5) After the appellant had run away from the house both Parul
and Laben were found lying dead on the courtyard of the house
with gaping wounds on their throats.
6) On the same night, at or about 1 a.m., the appellant visited
the house of his brother-in-law Kamal Lohar (P.W. 11) of village
Garadihi and was found to be in possession of a katari.
7) The appellant confessed before Kamal that he had committed
the murders of both Parul and Laben.
8) After having made the confession he left the house stealthily
and remained absconding till he was seen by Biswanath (P.W. 10)
in the evening of 26-12-82 near a tank called Chinarbandh where
there is no human habitation.
11) When the villagers went there he tried to escape but was ultimately
apprehended by them.
12) After his apprehension he confessed before them that he had
murdered Parul an Laben as they were frequently quarrelling with
him and disturbing the family peace.
13) After arrest he led the Investigating officer to the house
of Kamal Lohar (P.W. 11) in village Garadihi and brought out a
katari from inside a room of the house.
14) The injuries of Parul and Laben, according to the autopsy
surgeon, might have been caused by the said Katari.
12. The law is well settled that in cases in which the evidence
is purely of a circumstantial nature, the facts and circumstances
from which the conclusion of guilt of the accused is to be drawn
must not only be established beyond any reasonable doubt and the
facts and circumstances should not only be consistent with the
guilt of the accused but they must be in their effect entirely
incompatible with the innocence of the accused and must exclude
every reasonable hypothesis consistent with his innocence.
13. We may now turn to the evidence to see whether the facts and
circumstances relied upon by the prosecution have been fully established
beyond any reasonable doubt and, if so, whether they are such
as cannot be explained on any other reasonable hypothesis except
the guilt of the appellant.
14. Pramila (P.W. 1) is the widow of deceased Laben and it appears
from her evidence that there were frequent quarrels between Parul
and the appellant. She and her husband Laben tried to restore
peace in the family but without result and sometimes the appellant
became angry for their efforts to bring about a reconciliation.
Ultimately things came to such a pass and Parul and her husband
Lakshmi Kanta separated in mess from the appellant. According
to her, in the evening of 15-7-78 she and her husband returned
home from their day's work after which she went inside her house
to feed her child, while Laben lay down on the common courtyard
for taking rest. She, however, fell asleep and at or about 10
p.m. was roused by the screams of Parul. Coming out of the room
she found the appellant with a katari in his hand dragging Parul
across the courtyard by holding her hair. Thereafter the appellant
threw her down on the courtyard near his feet. Being scared, she
(Pramila) raised an alarm and the appellant immediately went out
of the house with the katari. At first, he was standing outside
the house but when the neighbours stated coming hearing the row,
he ran away with the katari. She then went to call her husband
but found him lying dead on the courtyard with a bleeding injury
on his throat. Parul also was found lying dead on the courtyard
with a gaping wound on her throat.
15. Pramila's evidence has been strongly assailed by Mr. Jaiswal,
the learned Advocate for the appellant, on the ground that after
the attack on Parul which was launched inside her room, it was
not possible for her to shout for help and further on the ground
that there was no sufficient light to facilitate recognition of
the appellant by Pramila.
16. It will appear from the evidence of Pramila (P.W. 1), Subal
(P.W. 4), and the Investigating Officer (P.W. 19) that blood was
found on the floor of the room occupied by Parul and her husband
Lakshmi Kanta which clearly suggests that the attack was launched
on Parul inside the room after which, she was dragged out to the
courtyard. In cross-examination, the autopsy surgeon (P.W. 17)
stated that even though the injury of Parul was grave in nature,
she could nevertheless remain conscious for a few moments after
the attack. The sketch map (Ext. 5) prepared by the Investigating
Officer goes to show that the courtyard is just outside the room
which used to be occupied by Parul. It is, therefore, quite likely
that she cried out immediately after receiving the blow inside
her room and was thereafter dragged to the courtyard. Pramila
(P.W. 1) nowhere stated that Parul was shouting while she was
being dragged across the courtyard. All that she deposed to was
that she was roused by the screams of Parul and coming out of
her room found Parul being dragged across the courtyard by the
appellant. Lakshmi Kanta (P.W. 2) also deposed to the effect that
he woke up from sleep hearing the cries of Parul. Not finding
her inside the room, he came to the courtyard just outside the
room and found her lying there. He also found his father (appellant)
running away from the house with a katari, in his hand. In view
of the above evidence, there can be manner of doubt that Parul
sent but a scream on receiving the blow inside her room and was
immediately dragged out of the room to the courtyard where she
was seen by Pramila (P.W. 1) and Lakshmi Kanta (P.W. 2).
17. The evidence of Satyabrata (P.W. 5) and Kamal (P.W. 11) undoubtedly
indicates that the occurrence took place on a dark night, but
then Pramila's evidence in her cross-examination goes to show
that a lamp was burning in her room when she heard the screams
of Parul. It is also seen from the evidence of Badli (P.W. 3)
that there was a lighted lantern on the courtyard when the occurrence
took place. That apart, Pramila and the appellant are close relatives
who lived in two contiguous houses with a common courtyard. In
such circumstances, and also in view of the fact that there was
a lighted lantern on the courtyard, the recognition of the appellant
by Pramila cannot be doubted even for a moment.
18. The inmates of the house, including the appellant's wife Badli
(P.W. 3) consistently stated that the appellant was not found
in the house after the murders were detected. Also, Pramila (P.W.
1) and Lakshmi Kanta (P.W. 2) saw the appellant running away from
the house with a katari. The neighbours namely, Subal (P.W. 4),
Satyabrata (P.W. 5), Krishna (P.W. 6), Kanai (P.W. 7) and Nagen
(P.W. 9) who rushed to the appellant's house hearing the row did
not find him in the house. Nagen was told by Pramila that the
appellant had fled away from the house after the occurrence. Thereafter
he and some neighbours searched for the appellant in the village
but could not find him. These neighbours are completely disinterested
persons having no reason to depose falsely against the appellant
and we see no reason to disbelieve them. The evidence discussed
above, therefore, clearly establishes the fact that the appellant
dragged Parul across the courtyard by holding her hair and threw
her down on the courtyard near his feet. At that time he had a
katari in his hand and as soon as Pramila raised an alarm, he
fled away from the house with the katari and could not be found
out on search by the villagers.
19. It transpires from the evidence of Kamal (P.W. 11), the brother-in-law
(husband of wife's sister) of the appellant that on the same night
the appellant went to his house in village Garadihi. When Kamal
returned home from a party meeting at or about 1 a.m. he found
a man sleeping on the ledge of the house. As the night was dark,
he went inside the house and asked his second wife who the man
was and was told her that he was Mathur. He then came out with
a lighted lantern and awakened the appellant and at that time
found a katari with him. The appellant confessed before him that
he had murdered both his daughter-in-law Parul and his brother
Laben. Kamal then went inside the house and asked his wife to
serve meals to him and the appellant who is his relative but when
the meal was ready and he came out to call the appellant the latter
could not be found. Although Kamal was cross-examined by the defence
it was not even suggested to him that the appellant did not visit
his house on the night of occurrence or that he did not leave
the house unnoticed. The only suggestion given to him was that
the appellant did not confess his guilt but it was emphatically
denied. We have carefully examined his evidence but find nothing
to render it suspect. In our opinion, he is a truthful witness
having no reason to perjure himself by lending his oath to whatever
the prosecution wanted him to say.
20. Biswanath (P.W. 10) gave evidence to the effect that on Baisakh
10 (26-4-82), just before evening, he found the appellant drinking
water from a tank called Chinarbandh on the outskirts of the village.
As he was alone he did not venture to apprehend the appellant.
He, therefore, came back to the village and returned to the spot
with some villagers when they found the appellant sitting inside
a bush. At their sight the appellant tried to escape but was surrounded
by them and apprehended. After his apprehension the appellant
confessed before them that he had committed the murders of Parul
and Laben as they frequently quarreled with him and disturbed
the family peace. Thereafter the Police was informed and the appellant
was taken into custody from that place where he was detained by
the villagers.
21. This part of the prosecution case was amply proved by Biswanath
(P.W. 10) who first saw him drinking water from the tank called
Chinarbandh and also by Tushar (P.W. 8) and Nagen (P.W. 9) who,
along with others, helped him in the apprehension of the appellant.
They are disinterested and reliable witnesses having no animus
against the appellant and all of them stoutly refuted the defence
suggestion that the appellant was assaulted by them after his
apprehension. According to them, the confession was quite voluntary
and not result of any threat or assault. Mr. Jaiswal, representing
the appellant, has not suggested any cogent reason for discarding
their evidence and on a scrutiny of their evidence we are fully
satisfied that they are all witnesses of truth.
22. The evidence of the Investigating Officer (P.W. 19) indicates
that on receipt of an information about the apprehension of the
appellant he went to Chinarbandh on the outskirts of village Sonajhore
and took the appellant into custody from the villagers who detained
him there. After his arrest the appellant was interrogated and
he led the Investigating Officer to the house of Kamal Lohar (P.W.
11) in village Garadihi. There, from inside a room, he brought
out a katari which was seized under the seizure list exhibit 4/2.
Nirmal (P.W. 12) and Kalipada (P.W. 13) who witnessed the seizure
deposed to the effect that from the place of arrest the appellant
led the Investigating Officer to the house of Kamal Lohar. While
they waited outside the house, the appellant entered a room and
came out with a katari which he handed over to the Investigating
Officer in their presence. According to them, the seizure list
was signed by them as well as by the appellant. Nirmal and Kalipada
are residents of village Garadihi and there is nothing in their
cross-examination to make their evidence suspect. We are, therefore,
satisfied that this part of the prosecution case has been fully
established. Since, however, no bloodstain could be detected on
the katari by the forensic expert and the appellant did not make
any statement that he had kept the katari concealed in the room
the recovery of the katari, taken in isolation, may not be of
much consequence but in undoubtedly assumes importance when considered
in the context of the other circumstances proved by the prosecution.
23. We are now to see whether the circumstances which have been
proved beyond any reasonable doubt are entirely incompatible with
the innocence of the appellant and lead to the only conclusion
of his guilt.
24. It has been mentioned already that the appellant made two
extra-judicial confessions to the effect that he committed murders
of his daughter-in-law Parul and his brother Laben. The first
confession was made to his brother-in-law Kamal Lohar (P.W. 11)
on the very night of occurrence and the second one was made to
his neighbours Tushar (P.W. 8), Nagen (P.W. 9) and Biswanath (P.W.
10) immediately after his apprehension by them.
The witnesses to whom the confessions were made have been found
by us to be quite reliable and trustworthy, having no animus against
the appellant, and, consequently, no reason to falsely implicate
him on a grave charge of the murder of two persons.
25. Regarding the evidentiary value of an extra-judicial confession
we would like to extract below the observation made by the Supreme
Court in State of U.P. v. M. K. Anthony reported in AIR 1985 SC
48 : (1985 Cri LJ 493). It runs thus :-
"There is neither any rule of law nor of prudence that evidence
furnished by extra-judicial confession cannot be relied upon unless
corroborated by some other credible evidence. The Courts have
considered the evidence of extra-judicial confession a weak piece
of evidence. If the evidence about extra-judicial confession comes
from the mouth of witness/witnesses who appear to be unbiased,
not even remotely inimical to the accused, and in respect of whom
nothing is brought out which may tend to indicate that he may
have a motive for attributing an untruthful statement to the accused
: the words spoken to by the witnesses are clear, unambiguous
and unmistakably convey that the accused is the perpetrator of
the crime and nothing is omitted by the witness which may militate
against it, then after subjecting the evidence of the witness
to a rigorous test, on the touchstone of credibility, if he passes
the test, the extra-judicial confession can be accepted and can
be the basis of a conviction. In such a circumstance to go in
search of corroboration itself tends to cast a shadow of doubt
over the evidence. If the evidence of extra-judicial confession
is reliable, trustworthy and beyond reproach the same can be relied
upon and a conviction can be founded thereon."
26. Since the witnesses who deposed about the extra-judicial confessions
made by the appellant have been found to be quite reliable and
trustworthy, and the words spoken to by them are clear, unambiguous
and unmistakably convey that the appellant is the perpetrator
of the crime the confessions, by themselves, are quite sufficient
to warrant the conviction of the appellant under Section 302,
Indian Penal Code for committing the murders. Besides the confessions,
however, there are certain proved circumstances which also unmistakably
point to the guilt of the appellant. The circumstances so proved
by the prosecution are :-
1) The appellant had a motive for the crime.
2) Immediately after the screams of Parul were heard, the appellant
was found dragging her across the appellant was found dragging
her across the courtyard by holding her hair and throwing her
down on the courtyard near his feet.
3) The appellant had a katari in his hand at that time.
4) As soon as Pramila raised an alarm the appellant fled away
from the house with the katari.
5) He remained absconding for two days till he was apprehended
by the villagers.
6) After his arrest by the Police he led the Investigating Officer
to the house of Kamal Lohar and brought out a Katari from the
house.
In our opinion, the facts and circumstances stated above lead
us to the only conclusion of the guilt of the appellant and are
entirely incompatible with his innocence. In the above circumstances,
we are inclined to think the appellant has been rightly convicted
under section 302 Indian Penal Code for committing the murders
of Parul and Laben.
27. That takes us to the question of sentence. The learned Sessions
Judge imposed the extreme penalty of death being apparently swayed
by the fact that two murders were committed in quick succession
and the murders were pre-planned, deliberate and brutal. The question
as to when the extreme penalty of death should be imposed has
since been set at rest by the Supreme Court in Bachan Singh v.
State of Punjab reported in AIR 1980 SC 898 : (1980 Cri LJ 636)
where it has been observed that "a real and abiding concern
for the dignity of human life postulates resistance to taking
life through law's instrumentality. That ought not to be done
save in the 'rarest of rare' cases when the alternative option
is unquestionably foreclosed".
28. The above decision was followed by the Supreme Court in the
case of Earabhadrappa v. State of Karnataka reported in AIR 1983
SC 446 : (1983 Cri LJ 846). It would be worthwhile to quote here
the relevant portion of the judgment which is as under :
"Finally there remains the question of sentence. It was cruel
hand of destiny that the deceased Smt. Rachamma met a violent
end by being strangulated to death by the appellant who betrayed
the trust of his master (P.W. 3) and committed her pre-planned
cold blooded murder for greed in achieving his object of committing
robbery of the gold ornaments on her person and in ransacking
the iron safe and the almirah kept in her bed room on the fateful
night. The appellant was guilty of a heinous crime and deserves
the extreme penalty. But we are bound by the rule laid down in
Bachan Singh v. State of Punjab, AIR 1980 SC 898 : (1980 Cri LJ
636) where the court moved by compassionate sentiments of human
feelings has ruled that sentence of death should not be passed
except in the 'rarest of rare' cases. The result now is that capital
punishment is seldom employed even though it may be a crime against
the society and the brutality of the crime shocks the judicial
conscience".
29. In the instant case although the murders were cruel and dastardly,
one circumstance that stands out in favour of the appellant is
that the marriage between his son Lakshmi Kanta and Parul was
arranged by his brother Laben in spite of his objections, as a
result of which, there were frequent bickerings between them.
That apart, the answer given by the appellant to question No.
2 put to him under section 313, Criminal Procedure Code clearly
indicates that he suspected an illicit intimacy between his brother
Laben and his daughter-in-law Parul. The suspicion might be wrong
but nevertheless it was haunting him and finally impelled him
to commit the murders. Had it been a case of simple family quarrel
the appellant would not have taken the extreme step of murdering,
not only his daughter-in-law, but also his own brother, more so,
when his son and daughter-in-law became separate in mess sometime
before the murders were committed. For the foregoing reasons,
we are unable to hold that this is one of the 'rarest of rare'
cases where the alternative option is unquestionably foreclosed.
In our considered opinion, the sentence of death should, therefore,
be commuted to one of imprisonment for life.
30. We therefore, while upholding the convictions of the appellant
under section 302, Indian Penal Code on both the counts commute
the sentence of death imposed by the trial court to one of imprisonment
for life. The appeal is allowed to the extent indicated above
and the reference is rejected.
31. MONOJ KUMAR MUKHERJEE, J. :- I agree.
Ordered accordingly.
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